FLOW SERVICING AGREEMENT between GOLDMAN SACHS MORTGAGE COMPANY, Owner and AVELO MORTGAGE, L.L.C., Servicer Dated as of January 1, 2006 CONVENTIONAL FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS
EXECUTION
COPY
FLOW
SERVICING AGREEMENT
between
XXXXXXX
XXXXX MORTGAGE COMPANY,
Owner
and
AVELO
MORTGAGE, L.L.C.,
Servicer
Dated
as
of January 1, 2006
CONVENTIONAL
FIXED AND ADJUSTABLE
RATE
RESIDENTIAL
MORTGAGE LOANS
TABLE
OF
CONTENTS
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Page
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ARTICLE
I
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DEFINITIONS
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Section
1.01
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Definitions
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1
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ARTICLE
II
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SERVICING
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Section
2.01
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Servicer
to Act as Servicer
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14
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Section
2.02
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Liquidation
of Mortgage Loans
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15
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Section
2.03
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Collection
of Mortgage Loan Payments
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15
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Section
2.04
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Establishment
of and Deposits to Custodial Account
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15
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Section
2.05
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Permitted
Withdrawals From Custodial Account
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17
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Section
2.06
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Establishment
of and Deposits to Escrow Account
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18
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Section
2.07
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Permitted
Withdrawals From Escrow Account
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19
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Section
2.08
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Payment
of Taxes, Insurance and Other Charges With Respect to First Lien
Loans
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19
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Section
2.09
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Protection
of Accounts
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20
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Section
2.10
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Maintenance
of Hazard Insurance
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20
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Section
2.11
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance
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22
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Section
2.12
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Inspections
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22
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Section
2.13
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Restoration
of Mortgaged Property
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22
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Section
2.14
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Liquidation
Reports
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23
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Section
2.15
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Notification
of Adjustments
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23
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Section
2.16
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Reports
of Foreclosures and Abandonments of Mortgaged Property
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23
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Section
2.17
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Credit
Reporting
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23
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Section
2.18
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Title,
Management and Disposition of REO Property
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23
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Section
2.19
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Permitted
Withdrawals with Respect to REO Property
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25
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Section
2.20
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Real
Estate Owned Reports
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25
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Section
2.21
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Reports
of Foreclosures and Abandonments of Mortgaged Property
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25
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Section
2.22
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Recordation
of Assignments of Mortgage
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25
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Section
2.23
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Additional
Servicing Requirements
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25
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Section
2.24
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Tax
and Flood Service Contracts
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26
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-i-
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ARTICLE
III
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PAYMENTS
TO OWNER
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Section
3.01
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Remittances
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26
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Section
3.02
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Statements
to Owner
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27
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Section
3.03
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Advances
by Servicer
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27
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Section
3.04
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Principal
and Interest Advances by Servicer
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27
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ARTICLE
IV
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GENERAL
SERVICING PROCEDURES
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Section
4.01
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Transfers
of Mortgaged Property
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28
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Section
4.02
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Satisfaction
of Mortgages and Release of Mortgage Files
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28
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Section
4.03
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Servicing
Compensation
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29
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Section
4.04
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Right
to Examine Servicer Records
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29
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Section
4.05
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Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999
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30
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ARTICLE
V
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SERVICER
TO COOPERATE
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Section
5.01
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Provision
of Information
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30
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Section
5.02
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Financial
Statements; Servicing Facilities
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30
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Section
5.03
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Covenant
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30
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ARTICLE
VI
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TERMINATION
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Section
6.01
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Liability
of the Owner and the Servicer
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31
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Section
6.02
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Termination
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31
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ARTICLE
VII
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BOOKS
AND RECORDS
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Section
7.01
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Possession
of Servicing Files Prior to the Subsequent Transfer Date
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32
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ARTICLE
VIII
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INDEMNIFICATION
AND ASSIGNMENT
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Section
8.01
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Indemnification
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33
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Section
8.02
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Limitation
on Liability of Servicer and Others
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33
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Section
8.03
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Limitation
on Resignation and Assignment by Servicer
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34
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Section
8.04
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Assignment
by Owner
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35
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Section
8.05
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Merger
or Consolidation of the Servicer
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35
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-ii-
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ARTICLE
IX
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REPRESENTATIONS
AND WARRANTIES
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Section
9.01
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Representations
and Warranties Regarding the Servicer
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36
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Section
9.02
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Representations
and Warranties of the Owner
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37
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ARTICLE
X
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DEFAULT
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Section
10.01
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Events
of Default
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38
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Section
10.02
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Waiver
of Defaults
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40
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ARTICLE
XI
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MISCELLANEOUS
PROVISIONS
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Section
11.01
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Notices
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40
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Section
11.02
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Waivers
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40
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Section
11.03
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[Reserved]
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40
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Section
11.04
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Entire
Agreement; Amendment
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41
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Section
11.05
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Execution;
Binding Effect
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41
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Section
11.06
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Headings
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41
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Section
11.07
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Applicable
Law
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41
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Section
11.08
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Relationship
of Parties
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41
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Section
11.09
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Severability
of Provisions
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41
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Section
11.10
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General
Interpretive Principles
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41
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Section
11.11
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Reproduction
of Documents
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42
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Section
11.12
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Further
Agreements
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42
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Section
11.13
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No
Solicitation
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42
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Section
11.14
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Waiver
of Trial by Jury
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42
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Section
11.15
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Submission
To Jurisdiction; Waivers
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43
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Section
11.16
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Confidential
Information
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43
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ARTICLE
XII
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COMPLIANCE
WITH REGULATION AB
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Section
12.01
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Intent
of the Parties; Reasonableness
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44
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Section
12.02
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Additional
Representations and Warranties of the Servicer
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45
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Section
12.03
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Information
to Be Provided by the Servicer
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45
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Section
12.04
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Servicer
Compliance Statement
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49
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Section
12.05
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Report
on Assessment of Compliance and Attestation
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49
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Section
12.06
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Use
of Subservicers and Subcontractors
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50
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Section
12.07
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Indemnification;
Remedies
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51
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-iii-
EXHIBITS
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SCHEDULE
1
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REQUIRED
FIELDS FOR MONTHLY REMITTANCE REPORT
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SCHEDULE
2
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CONTENTS
OF EACH MORTGAGE LOAN DOCUMENTS
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SCHEDULE
3
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CONTENTS
OF EACH MORTGAGE FILE
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EXHIBIT
1
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FORM
OF MONTHLY REMITTANCE ADVICE
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EXHIBIT
2
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FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
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EXHIBIT
3
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FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
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EXHIBIT
4
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FORM
OF ESCROW ACCOUNT CERTIFICATION
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EXHIBIT
5
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FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
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EXHIBIT
6
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FORM
OF ANNUAL CERTIFICATION
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EXHIBIT
7
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SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
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EXHIBIT
8
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SUBPRIME
DEFAULT AND REO SERVICING STANDARDS
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EXHIBIT
9
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REO
SERVICING STANDARDS
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EXHIBIT
10
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FORM
OF NOTICE LETTER
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-iv-
FLOW
SERVICING AGREEMENT
This
Flow
Servicing Agreement (the “Agreement”)
is
entered into as of the 1st
day
of
January 2006, by and between AVELO MORTGAGE, L.L.C. (the “Servicer”), a
Delaware
limited liability company and XXXXXXX XXXXX MORTGAGE COMPANY, a New York limited
partnership (the “Owner”).
WHEREAS,
the Owner has purchased certain conventional, residential, fixed and
adjustable
rate, first and second lien mortgage loans (the “Mortgage
Loans”)
and
the right to service
such Mortgage Loans and the right to retain the servicing fee and certain
ancillary income
related to the Mortgage Loans (the “ServicingRights”)
from various originators which were delivered as whole loans on
a servicing released basis pursuant to the related Purchase Agreement
(as defined below) by and between the Owner and Seller (as defined
below);
WHEREAS,
the Servicer regularly services residential mortgage loans and is or
will
be
servicing the Mortgage Loans pursuant to this Agreement;
WHEREAS,
the Owner will retain ownership of the Servicing Rights and the right
to
sell or assign the Servicing Rights; and
WHEREAS,
the Owner desires, and the Servicer has agreed to service and administer
the Mortgage Loans that become subject to this Agreement on an “at-will” basis,
and the parties desire to provide the terms and conditions of such servicing
by
the Servicer.
NOW,
THEREFORE, in consideration of the mutual covenants made herein and for
other
good and valuable consideration the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
The
following terms are defined as follows (except as otherwise
agreed by the parties).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan or REO Property,
each of (a) those mortgage servicing practices (including collection procedures)
of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located and
in
compliance
with all applicable federal, state and local laws which (i) servicing practices
are in compliance
with all federal, state and local laws and regulations, (ii) shall be in
accordance with the
Servicer’s policies and procedures as amended from time to time for mortgage
loans of the same
type, (iii) are in accordance with the terms of the Mortgage and the Mortgage
Note and (iv)
at a
minimum based on the requirements set forth from time to time by Xxxxxx
Mae.
Adjustable
Rate Mortgage Loan:
An
adjustable rate Mortgage Loan.
Advance
Facility:
As
defined in Section 8.03.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership
of voting securities, by contract or otherwise and the terms “controlling” and
“controlled”
have meanings correlative to the foregoing.
Agreement:
This
agreement between the Owner and the Servicer for the servicing and
administration of the Mortgage Loans.
Ancillary
Income:
All
income derived from the Mortgage Loans (other than payments
or other collections in respect of principal, interest, Escrow Payments,
Servicing Fees and
prepayment penalties or premiums attributable to the Mortgage Loans), including
but not limited
to interest received on funds deposited in the Custodial Account or any Escrow
Account (subject
to applicable law), all late charges, assumption fees, reconveyance fees,
subordination fees, demand statement fees, modification fees, if any, escrow
account benefits, reinstatement fees,
fees received with respect to checks on bank drafts returned by the related
bank
for insufficient
funds, and other similar types of fees arising from or in connection with any
Mortgage
Loan to the extent not otherwise payable to the Mortgagor under applicable
law
or pursuant
to the terms of the related Mortgage Note.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination
of the related Mortgage Loan as the value of the Mortgaged
Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form, sufficient under the laws of the jurisdiction
wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Owner.
BPO:
A
broker price opinion.
Business
Day:
Any day
other than (i) a Saturday or Sunday, (ii) a day on which banking
and savings and loan institutions in (a) the State of New York, (b) the state
in
which the Servicer’s
servicing operations are located or (c) or (iii) the State in which the
Custodian’s operations
are located, are authorized or obligated by law or executive order to be
closed.
CLTV:
As of
any date and as to any Second Lien Loan, the ratio, expressed as a percentage,
of (a) the sum of (i) the outstanding principal balance of the Second Lien
Loan
and (ii) the outstanding principal balance of as of such date of any mortgage
loan or mortgage loans that are senior or equal in priority to the Second Lien
Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value as determined pursuant to the Underwriting
Guidelines
of the related Mortgaged Property as of the origination of the Second Lien
Loan.
Code:
The
Internal Revenue Code of 1986, as amended.
Commission:
The
United States Securities and Exchange Commission.
-2-
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property,
whether permanent or temporary, partial or entire, by exercise of the power
of
eminent domain or condemnation, to the extent not required to be released to
a
Mortgagor in accordance with the terms of the related Mortgage Loan
Documents.
Custodial
Account:
The
separate account or accounts created and maintained pursuant
to Section 2.04.
Custodial
Agreement:
With
respect to each Mortgage Loan, the agreement between
the Owner and the custodian of the Mortgage Loan Documents for such Mortgage
Loan,
governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other documents constituting the related Mortgage
Loan Documents.
Custodian:
With
respect to each Mortgage Loan, the custodian of the Mortgage Loan
Documents under the related Custodial Agreement, or its successor in interest
or
permitted assigns,
or any successor to the Custodian under the related Custodial Agreement as
therein provided.
Cut-off
Date:
The
date set forth as such in the related Purchase Agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to
any
Securitization Transaction.
Determination
Date:
The
last day of the month preceding the related Remittance Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
Due
Period:
With
respect to amounts collected by the Servicer and required to be remitted
to the Owner on each Remittance Date, the period commencing on the first day
of
the month
and
ending on the last day of the month preceding the month of the Remittance
Date.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than one day prior to the Remittance
Date in each month (or such other date as permitted under this
Agreement):
(i)
direct obligations of, and obligations fully guaranteed as to timely
payment
of principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the
full
faith and credit of the United States of America (“Direct
Obligations”);
(ii)
federal funds, demand and time deposits in, certificates of deposits of, or
bankers’
acceptances issued by, any depository institution or trust company (including
U.S.
subsidiaries of foreign depositories) incorporated or organized under the laws
of the United States of America or any state thereof and subject to supervision
and examination by
federal or state banking authorities, so long as at the time of such investment
or the contractual
commitment providing for such investment the commercial paper or other
short-term
debt obligations of such depository institution or trust company (or, in the
case of
a
depository institution or trust company which is the principal subsidiary of
a
holding company,
the commercial paper or other short-term debt or deposit obligations of such
holding
company or deposit institution, as the case may be) have been rated by each
Rating
Agency in its highest short-term rating category or one of its two highest
long-term
rating categories;
-3-
(iii)
repurchase agreements collateralized by Direct Obligations or securities
guaranteed
by Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject to
Securities
Investors' Protection Corporation jurisdiction or any commercial bank insured
by
the
FDIC, if such broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation
rated by each Rating Agency in its highest short-term rating
category;
(iv)
securities bearing interest or sold at a discount issued by any corporation
incorporated
under the laws of the United States of America or any state thereof which
have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment
providing for such investment, at least equal to one of the two highest
long-term
credit rating categories of each Rating Agency; provided,
however, that
securities
issued by any particular corporation will not be Eligible Investments to
the
extent
that investment therein will cause the then outstanding principal amount
of
securities
issued by such corporation to exceed 20% of the aggregate principal amount
of
all
Eligible Investments in the Custodial Accounts and the Escrow Accounts;
provided,
further,
that
such
securities will not be Eligible Investments if they are published as being
under
review with negative implications from either Rating Agency;
(v)
commercial paper (including both non-interest-bearing discount obligations
and interest-bearing obligations payable on demand or on a specified date
not
more than 180 days after the date of issuance thereof) rated by each Rating
Agency in its highest
short-term rating category;
(vi)
certificates or receipts representing direct ownership interests in future
interest
or principal payments on obligations of the United States of America or its
agencies
or instrumentalities (which obligations are backed by the full faith and
credit
of the United States of America) held by a custodian in safekeeping on behalf
of
the holders of such receipts; and
(vii)
any
other demand, money market, common trust fund or time deposit or obligation,
or interest-bearing or other security or investment rated in the highest
rating
category
by each Rating Agency;
provided,
however, that
(a)
any such instrument shall be acceptable to the Rating Agencies, and (b) no
such
instrument shall be an Eligible Investment if such instrument evidences either
(i) a right
to
receive only interest payments with respect to the obligations underlying
such
instrument,
or (ii) both principal and interest payments derived from obligations underlying
such instrument
and the principal and interest payments with respect to such instrument provide
a yield
to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
-4-
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Servicer pursuant
to Section 2.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant
to Section 2.06.
Escrow
Payment:
With
respect to any Mortgage Loan, the amounts constituting ground
rents, taxes, assessments, water rates, sewer rents, municipal charges, mortgage
insurance premiums,
tire and hazard insurance premiums, condominium charges, and any other payments
required
to be escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or
any other
document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section
10.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Mae:
The
Federal National Mortgage Association, or any successor thereto.
Xxxxxx
Xxx Guides:
The
Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Xxx Servicing
Guide and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Administration, an agency within the United States Department
of Housing and Urban Development, or any successor thereto and including
the
Federal
Housing Commissioner and the Secretary of Housing and Urban Development where
appropriate
under the FHA Regulations.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
2.11.
First
Lien Loan:
A
Mortgage Loan secured by a first lien Mortgage on the related Mortgaged
Property.
Fitch:
Fitch,
Inc., or its successor in interest.
Fixed
Rate Mortgage Loan:
A fixed
rate mortgage loan purchased pursuant to this
Agreement.
Flood
Zone Service Contract:
A
transferable contract maintained for a Mortgaged Property
with a nationally recognized flood zone service provider for the purpose
of
obtaining the
current flood zone status relating to such Mortgaged Property.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
-5-
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage
amount set forth in the related Mortgage Note which amount is added to the
Index
in accordance
with the terms of the related Mortgage Note to determine on each Interest
Rate
Adjustment
Date the Mortgage Interest Rate for such Mortgage Loan.
High
Cost Loan:
A
Mortgage Loan (a) covered by the HOEPA, or (b) classified as
a
"high cost," "threshold," "covered," "predatory" or similar loan under any
other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans
having high interest rates, points and/or fees).
HOEPA:
The
federal Home Ownership and Equity Protection Act of 1994, as amended.
HOEPA
Loan:
A
Mortgage Loan which (a) the Owner has identified to the Servicer
in the Mortgage Loan Schedule as being subject to HOEPA, or (b) which the
Servicer discovers
is subject to HOEPA.
HUD:
The
Department of Housing and Urban Development, or any federal agency
or
official thereof which may from time to time succeed to the functions thereof
with regard to FHA Mortgage Insurance. The term "HUD," for purposes of this
Agreement, is also deemed to include subdivisions thereof such as the FHA
and
Government National Mortgage Association.
Index:
With
respect to each Adjustable Rate Mortgage Loan, the index set forth in the
related Mortgage Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
With
respect to each Adjustable Rate Mortgage Loan,
the
date, specified in the related Mortgage Note and the Mortgage Loan Schedule,
on
which
the
Mortgage Interest Rate is adjusted.
Lifetime
Rate Cap:
The
provision of each Mortgage Note related to an Adjustable
Rate Mortgage Loan which provides for an absolute maximum Mortgage Interest
Rate
thereunder. The Mortgage Interest Rate during the terms of each Adjustable
Rate
Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount
per
annum set forth in the related Mortgage
Loan Documents.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee's
sale, foreclosure sale or otherwise, or the sale of the related Mortgaged
Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio (expressed
as a percentage) of the outstanding principal amount of the Mortgage Loan,
to
the lesser
of
(a) the Appraised Value of the Mortgaged Property at origination or (b) if
the
Mortgage Loan
was
made to finance the acquisition of the related Mortgaged Property, the purchase
price of
the
Mortgaged Property.
-6-
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized
and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related mortgage or assignment of Mortgage
has
been recorded in the name of MERS, as agent for the holder from time
to
time of the Mortgage Note and which is identified as a MERS Mortgage Loan
on the
related
Mortgage Loan Schedule.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained
by MERS.
MIN:
The
Mortgage Identification Number of Mortgage Loans registered with MERS
on
the MERS® System.
MOM
Loan:
Any
Mortgage Loan where MERS acts as the mortgagee of record of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Advance:
The
portion of Monthly Payment delinquent with respect to each Mortgage Loan
at the
close of business on the Business Day immediately preceding the Remittance
Date required to be advanced by the Servicer pursuant to Section
3.04.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan,
or the
scheduled monthly payment of interest, if no principal is due.
Moody’s:
Xxxxx’x
Investors Service, Inc., and any successor thereto.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Loan, or a second
lien,
in the case of a Second
Lien Loan, on an unsubordinated estate in fee simple in real property securing
the Mortgage
Note; except that with respect to real property located in jurisdictions
in
which the use of
leasehold estates for residential properties is a widely-accepted practice,
the
mortgage, deed of trust
or
other instrument securing the Mortgage Note may secure and create a first
lien,
in the case
of a
First Lien Loan, or a second lien, in the case of a Second Lien Loan, upon
a
leasehold estate
of
the Mortgagor.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Schedule
3
hereto,
and any additional documents required to be added to the Mortgage File
pursuant
to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note with
respect to each Mortgage Loan.
-7-
Mortgage
Loan Documents:
The
documents listed on Schedule
2
hereto
pertaining
to any Mortgage Loan.
Mortgage
Loan Package:
A pool
of Mortgage Loans to be serviced by the Servicer
hereunder and identified in the related Notice Letter.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual
rate of interest remitted to the Owner, which shall be equal to the Mortgage
Interest Rate minus
the
Servicing Fee.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans with respect to a Mortgage Loan Package, in
a form
mutually agreed upon by the Owner and the Servicer, to be delivered
by the Owner to the Servicer, which schedule shall include such fields
as the
Owner and
the
Servicer may from time to time agree upon, including, on the date of this
Agreement, the following
information with respect to each Mortgage Loan; (1) the name of the Seller
and
the Seller’s
Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the street
address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a
2-4
family residence, a unit in a condominium project or a unit in a planned
unit
development, manufactured
housing); (6) the original months to maturity or the remaining months to
maturity from
the
related Cut-off Date, in any case based on the original amortization schedule
and, if different,
the maturity expressed in the same manner but based on the actual amortization
schedule;
(7) the Loan-to-Value Ratio at origination; (8) with respect to First Lien
Loans, the LTV
and
with respect to Second Lien Loans, the CLTV; (9) the Mortgage Interest
Rate as
of the related
Cut-off Date; (10) the date on which the Monthly Payment was due on the
Mortgage
Loan and, if such date is not consistent with the Due Date currently in
effect,
such Due Date; (11)
the
stated maturity date; (12) the amount of the Monthly Payment as of the
related
Cut-off Date;
(13) the last payment date on which a Monthly Payment was actually applied
to
pay interest
and the outstanding principal balance; (14) the original principal amount
of the
Mortgage Loan;
(15) the principal balance of the Mortgage Loan as of the close of business
on
the related Cut-off
Date, after deduction of payments of principal due and collected on or
before
the related Cut-off
Date; (16) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate
Adjustment Date;
(17) with respect to Adjustable Rate Mortgage Loans, the Gross Margin;
(18) with
respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of
the
Mortgage Note;
(19) with respect to Adjustable Rate Mortgage Loans, a code indicating
the type
of Index; (20)
with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap under
the terms
of the
Mortgage Note; (21) with respect to Adjustable Rate Mortgage Loans, the
Periodic
Rate Floor
under the terms of the Mortgage Note; (22) the type of Mortgage Loan (i.e.,
Fixed Rate Mortgage
Loan, Adjustable Rate Mortgage Loan, First Lien Mortgage Loan, Second Lien
Mortgage
Loan); (23) a code indicating the purpose of the loan (i.e., purchase,
rate and
term refinance, equity take-out refinance); (24) a code indicating the
documentation style (i.e. full, alternative
or reduced); (25) the loan credit classification (as described in the applicable
Underwriting
Guidelines); (26) whether such Mortgage Loan provides for a prepayment
penalty
or
premium; (27) the prepayment penalty or premium period of such Mortgage
Loan, if
applicable;
(28) a description of the prepayment penalty or premium, if applicable;
(29) the
Mortgage
Interest Rate as of origination; (30) the credit risk score (FICO score)
at
origination; (31)
the
date of origination; (32) the Mortgage Interest Rate adjustment period;
(33) the
Mortgage
Interest Rate adjustment percentage; (34) the Mortgage Interest Rate floor;
(35)
the Mortgage Interest Rate calculation method (i.e., 30/360, simple interest,
other); (36) a code indicating
whether the Mortgage Loan is a Section 32 Mortgage Loan; (37) a code indicating
whether
the Mortgage Loan is assumable; (38) a code indicating whether the Mortgage
Loan
has been
modified; (39) the one year payment history; (40) the Due Date for the
first
Monthly Payment;
(41) the original Monthly Payment due; (42) with respect to the related
Mortgagor, the debt-to-income
ratio; (43) the Appraised Value of the Mortgaged Property; (44) the sales
price
of the
Mortgaged Property if the Mortgage Loan was originated in connection with
the
purchase of the Mortgaged Property; (45) the MERS identification number,
(46) if
the Mortgage Loan has borrower
paid, lender paid or deep primary mortgage insurance coverage and, if so,
(i)
the insurer’s
name, (ii) the policy or certification number, (iii) the premium rate and
(iv)
the coverage
percentage, (47) with respect to Second Lien Loans, the outstanding principal
balance of the superior lien, (48) a code indicating whether the Mortgage
Loan
is a HOEPA Loan, (49) a code indicating whether the Mortgage Loan is a
High Cost
Loan, (50) a code indicating whether the Mortgage Loan is a subject to
a
buydown, (51) flood zone and flood insurance coverage information
with respect to each Mortgage Loan (to the extent known by the Owner),
and (52)
the
applicable Servicing Fee Rate. With respect to the Mortgage Loans in the
aggregate, the Mortgage
Loan Schedule shall set forth the following information, as of the related
Cut-off Date; (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans;
and (4)
the
weighted average maturity of the Mortgage Loans.
-8-
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured
by a Mortgage.
Mortgaged
Property:
The
real property (or leasehold estate, if applicable) securing
repayment of the debt evidenced by a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Advance:
Any
Servicing Advance or Monthly Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property
which,
in the good faith judgment of the Servicer, will not or, in the case of
a
proposed advance, would not,
be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds
or
otherwise
from such Mortgage Loan or REO Property. The determination by the Servicer
that
it has
made
a Nonrecoverable Advance or that any proposed Servicing Advance or Monthly
Advance,
if made, would constitute a Nonrecoverable Advance shall be evidenced by
an
Officer’s
Certificate delivered to the Owner.
Notice
Date:
As
defined in Section 10.01(b).
Notice
Letter:
With
respect to each Mortgage Loan Package subject to this Agreement,
any letter, facsimile, e-mail or other communication from the Owner to
the
Servicer in the form of Exhibit 10 attached hereto (or including the same
information as required by such form of Exhibit) identifying the Mortgage
Loans
to be subject to this Agreement and the related Transfer
Date.
-9-
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman
of the Board, a President or Vice President, the Treasurer, the Secretary
or any
Assistant
Treasurer or any Assistant Secretary of the Servicer, and delivered to
the Owner
as required
by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Servicer,
reasonably acceptable to the Owner, provided
that
any
Opinion of Counsel relating to (a) the qualification of any account required
to
be maintained pursuant to this Agreement as an Eligible
Account, (b) qualification of the Mortgage Loans in a REMIC or (c) compliance
with the
REMIC
provisions must be (unless otherwise stated in such Opinion of Counsel)
an
opinion of
counsel who (i) is in fact independent of the related Servicer and any
master
servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial interest
in
the related Servicer
or any master servicer of the related Mortgage Loans or in an Affiliate
of
either and (iii)
is
not connected with the related Servicer or any master servicer of the Mortgage
Loans as an officer, employee, director, member or person performing similar
functions.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision
of each Mortgage Note which provides for an absolute maximum amount by
which the
Mortgage
Interest Rate therein may increase on an Interest Rate Adjustment Date
above the
Mortgage
Interest Rate previously in effect.
Periodic
Rate Floor:
With
respect to each Adjustable Rate Mortgage Loan, the provision
of each Mortgage Note which provides for an absolute maximum amount by
which the
Mortgage
Interest Rate therein may decrease on an Interest Rate Adjustment Date
below the
Mortgage
Interest Rate previously in effect.
Person:
Any
individual, corporation, partnership, limited liability company, joint
venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the Principal Prepayment Period, the amount if any, by
which
one month’s interest at the related Mortgage Loan Remittance Rate on
such
Principal Prepayment exceeds the amount of interest paid in connection
with such
Principal
Prepayment.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published
as the average rate in The Wall Street Journal (Northeast edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or
premium thereon and which is not accompanied by an amount of interest
representing scheduled
interest due on any date or dates in any month or months subsequent to
the month
of prepayment.
Principal
Prepayment Period:
The
month preceding the month in which the related
Remittance Date occurs.
-10-
Purchase
Agreement:
The
agreement pursuant to which the Owner purchased the related Mortgage Loans
from
the related Seller.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC
or
is otherwise acceptable to the Rating Agencies.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where
required
by law to transact mortgage guaranty insurance business and approved
as
an
insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Rating
Agency:
Any of
Fitch, Xxxxx'x or Standard & Poor’s, or their respective successors
designated by the Owner.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
Any (i)
pool purchase contracts, and/or agreements among
the
Owner, the Servicer, Xxxxxx Mae or Xxxxxxx Mac (as the case may be) and
any
servicer,
(ii) in connection with a Whole Loan Transfer, a Servicer’s warranties and
servicing agreement
or a participation and servicing agreement, and (iii) in connection with
a
Securitization
Transaction, a pooling and servicing agreement or similar
agreement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification
and interpretation as have been provided by the Commission in the adopting
release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(January
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or
its
staff from time to time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section
860D of the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC,
which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle
A of the Code, and related provisions and regulations, rulings or pronouncements
promulgated thereunder, as the foregoing may be in effect from time to
time.
Remittance
Date:
With
respect to each Mortgage Loan, the 18th day of any month,
or
if such 18th day is not a Business Day, the following Business Day.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Management Fee:
With
respect to each REO Property being managed by the
Servicer, that fee set forth in the applicable Notice Letter.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Owner
through foreclosure or by deed in lieu of foreclosure.
-11-
RESPA:
The
Real Estate Settlement Procedures Act, as amended from time to time.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Second
Lien Loan:
A
Mortgage Loan secured by a second lien Mortgaged on the related
Mortgaged Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer
of some or all of the Mortgage Loans directly or indirectly to an issuing
entity
in connection
with an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities,
the payments on which are determined primarily by reference to one or more
portfolios
of residential mortgage loans consisting, in whole or in part, of some
or all of
the Mortgage
Loans.
Seller:
With
respect to each Mortgage Loan, the Seller set forth in the related Purchase
Agreement
Servicer
Information:
As
defined in Section 12.07(a).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs
and
expenses (including reasonable attorneys’ fees and disbursements) incurred
(regardless if any such advance is not, in the reasonable determination
of the
Servicer, a Nonrecoverable Servicing
Advance when made but, thereafter, becomes a Nonrecoverable Servicing Advance)
in the
performance by the Servicer of its servicing obligations (other than Monthly
Advances), including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property or REO Property, (b)
any
fees relating to any enforcement or judicial proceedings, excluding
foreclosures, but including fees and costs associated with the bankruptcy
of the
related Mortgagor, (c) any appraisals, valuations, broker price opinions,
inspections, or environmental assessments, (d) foreclosure actions per
Xxxxxxx
Mac attorney fees and costs guidelines, (e) the management and liquidation
of
the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (f) taxes, assessments, water
rates, sewer rents
and
other charges which are or may become a lien upon the Mortgaged Property,
and
(g)
executing and recording instruments of satisfaction, deeds of
reconveyance.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation
AB, as such may be amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the
Owner
shall pay to the Servicer on each Remittance Date, which shall, for a period
of
one full
month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and
(b) the outstanding principal balance of such Mortgage Loan as of the first
day
of such month in which the related Monthly Payment is due. Such fee shall
be
payable monthly, computed on the basis of the same principal amount and
period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Owner to pay the Servicing Fee is limited to, and
the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect
to interest from Liquidation Proceeds, to the extent permitted by Section
2.05)
of such Monthly Payment collected by the Servicer, or as otherwise provided
under Section 2.05.
-12-
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate per annum specified
in the related Mortgage Loan Schedule.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Servicer
consisting of copies of the Mortgage Loan Documents listed on Schedule
2
hereto
and originals
of all documents in the Mortgage File as listed on Schedule
3
hereto
which are not delivered
to the Owner, its designee or the Custodian.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and servicing of the Mortgage Loans whose name appears on a list of servicing
officers
furnished by the Servicer to the Owner upon request, as such list may from
time
to time be
amended.
Special
Deposit Account:
Any
demand deposit account established by the Servicer
pursuant to an agreement with the related Qualified Depository that monies
deposited in the
account remain the property of the depositor thereof and are to be used
specifically for the purposes set forth in this Agreement.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies Inc., and any successor thereto.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(l)-(3)
and
1105(c) of Regulation AB
Static
Pool Party:
As
defined in Section 12.03(g).
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for
the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified
in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the
direction or
authority of the Company or a Subservicer.
Subsequent
Transfer Date:
The
date on which servicing shall be transferred to a successor
servicer, which shall be such date as mutually agreed in writing by the Servicer
and the Owner.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or
any
Subservicer and is responsible for the performance (whether directly or through
Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required
to be performed by the Servicer under this Agreement or any Reconstitution
Agreement that
are
identified in Item 1122(d) of Regulation AB.
-13-
Tax
Service Contract:
A
life-of-loan tax service contract maintained for the Mortgaged
Property with a tax service provider for the purpose of obtaining current
information from local taxing authorities relating to such Mortgaged
Property.
Transfer
Date:
The
date or dates set forth on the related Notice Letter on which the
Servicer from time to time shall commence servicing the Mortgage Loans listed
on
the related
Notice Letter.
Transaction
Servicer:
As
defined in Section 12.03(c).
Underwriting
Guidelines:
The
underwriting guidelines of the related originator, as
identified or specified in the related Purchase Agreement.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other
than a Securitization Transaction.
ARTICLE
II
SERVICING
Section
2.01 Servicer
to Act as Servicer.
With
respect to each Mortgage Loan in
each
Mortgage Loan Package, from and after the related Transfer Date, the Servicer,
as an independent contractor, shall service and administer the Mortgage Loans
pursuant to the terms of this Agreement, under the Servicer’s name on a
scheduled/scheduled basis, and shall have full power
and
authority to do any and all things in connection with such servicing and
administration
which the Servicer may deem necessary or desirable, consistent with the terms
of
this
Agreement and with Accepted Servicing Practices. The Servicer shall acknowledge
by email
to
the Owner its receipt of each Mortgage Loan Schedule and the Servicer’s
assumption of the servicing responsibilities with respect to the related
Mortgage Loan Package.
The
Servicer may not waive, modify or vary any term of any Mortgage Loan or
consent
to the postponement of strict compliance with any such term or in any manner
grant indulgence to any Mortgagor without the prior written consent of the
Owner. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered,
to execute and deliver on behalf of itself and the Owner, all instruments
of
satisfaction
or cancellation, or of partial or full release, discharge and all other
comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties.
If
reasonably required by the Servicer, the Owner shall furnish the Servicer
with
any powers of attorney
and other documents necessary or appropriate to enable the Servicer to carry
out
its servicing
and administrative duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures
(including collection procedures) and exercise the same care that it customarily
employs
and exercises in servicing and administering mortgage loans for its own account,
giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with the requirements
of this Agreement, the Mortgage Loan Documents or applicable law, and the
Owner’s
reliance on the Servicer.
-14-
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the
terms
hereof. For the purposes of this Agreement, Servicer shall be under no
obligation to deal
with
any Person with respect to this Agreement or the Mortgage Loans unless the
Servicer has
been
notified of such transfers as provided in this Section 2.01. The Owner may
sell
and transfer,
in whole or in part, the Mortgage Loans. Upon notice thereof, Servicer shall
xxxx its books
and
records to reflect the ownership of the Mortgage Loans by such assignee,
and the
previous
Owner shall be released from its obligations hereunder. This Agreement shall
be
binding
upon and inure to the benefit of the Owner and Servicer and their permitted
successors, assignees
and designees.
The
Servicer shall notify MERS of the ownership interest of Owner in each MOM
Loan
through the MORNET system or MIDANET system, as applicable, or any other
comparable
system acceptable to MERS. At any time during the term of this Agreement,
Owner
may direct Servicer to cause any MOM Loan to be deactivated from the MERS
System.
The
Servicer shall be responsible for the actions of any vendors which the
Servicer
utilizes to carry out its obligations hereunder and any fees paid to such
vendors shall be paid
by
the Servicer from its own funds.
Section
2.02 Liquidation
of Mortgage Loans.
In the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 is not paid when the same becomes
due and payable, or in the event the Mortgagor fails to perform any other
covenant or obligation under the Mortgage Loan and such failure continues
beyond
any applicable grace period,
the Servicer shall take such action as (l) the Servicer would take under
similar
circumstances
with respect to a similar mortgage loan held for its own account for investment,
(2)
shall
be consistent with Accepted Servicing Practices, or (3) the Servicer shall
determine prudently to be in the best interest of Owner.
Section
2.03 Collection
of Mortgage Loan Payments.
Continuously from the related
Transfer Date until the related Subsequent Transfer Date, the Servicer shall
proceed diligently
to collect all payments due under each of the Mortgage Loans when the same
shall
become
due and payable and shall take special care in ascertaining and estimating
Escrow Payments
and all other charges that will become due and payable with respect to the
Mortgage Loans and each related Mortgaged Property, to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
Section
2.04 Establishment
of and Deposits to Custodial Account.
The
Servicer shall
segregate and hold all funds collected and received pursuant to the Mortgage
Loans separate
and apart from any of its own funds and general assets and shall establish
and
maintain one or more Custodial Accounts, in the form of time deposit or demand
accounts, titled “Avelo Mortgage,
L.L.C., in trust for [insert Owner’s name], Residential Fixed and Adjustable
Rate Mortgage
Loans, and various Mortgagors.” The Custodial Account shall be established with
a Qualified
Depository acceptable to the Owner. The Servicer and the Owner intend that
the
Custodial
Account be a Special Deposit Account. Any funds deposited in the Custodial
Account shall
at
all times be fully insured to the full extent permitted by the FDIC and as
otherwise acceptable
to the Rating Agencies. Funds deposited in the Custodial Account may be drawn
on
by the Servicer in accordance with Section 2.05. The creation of any Custodial
Account shall be evidenced by a certification in the form of Exhibit
2
hereto,
in the case of an account established with
the
Servicer, or by a letter agreement in the form of Exhibit
3
hereto,
in the case of an account held by a depository other than the Servicer. A
copy
of such certification or letter agreement
shall be furnished to the Owner and, upon request, to any subsequent
Owner.
-15-
The
Servicer shall deposit in the Custodial Account within two (2) Business
Days
of
receipt thereof, and retain therein, the following collections received
by the
Servicer and payments
made by the Servicer after the related Transfer Date, other than payments
of
principal and interest due on or before the related Subsequent Transfer
Date, or
received by the Servicer prior to the related Subsequent Transfer Date
but
allocable to a period subsequent thereto:
(i)
all
payments on account of principal on the Mortgage Loans including all
Principal
Prepayments;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Liquidation Proceeds and any amounts received with respect to REO Property;
(iv)
all
Insurance Proceeds including amounts required to be deposited pursuant
to Section 2.10 (other than proceeds to be held in the Escrow Account and
applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor
in accordance with Section 2.13);
(v)
all
Condemnation Proceeds which are not applied to the restoration or repair
of
the Mortgaged Property or released to the Mortgagor in accordance with
Section
2.15;
(vi)
any
amount required to be deposited in the Custodial Account pursuant to Section
2.01, 2.09, 3.01, 4.01 or 4.02;
(vii)
any
amounts payable to the Owner in connection with the repurchase of any
Mortgage Loan pursuant to the related Purchase Agreement;
(viii)
with respect to each Principal Prepayment in full or in part, the Prepayment
Interest Shortfall Amount, if any, for the month of distribution. Such
deposit
shall be made from the Servicer’s own funds, without reimbursement therefore up
to a maximum amount per month of one-half of the Servicing Fee actually
received
for such month
for
the Mortgage Loans;
(ix)
any
prepayment penalties or premiums received with respect to any Mortgage
Loan; and
-16-
(x)
any
amounts required to be deposited by the Servicer pursuant to Section
2.11 in connection with the deductible clause in any blanket hazard insurance
policy.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive,
it being understood and agreed that, without limiting the generality of
the
foregoing, unless
otherwise provided herein, payments in the nature of Ancillary Income,
need not
be deposited
by the Servicer into the Custodial Account. Any interest paid on funds
deposited
in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant
to Section 2.05.
With
respect to each Securitization Transaction, the Servicer shall establish
a
separate
custodial account for the related securitization and deposit all amounts
that
have been or are
subsequently received with respect to the Mortgage Loans included in such
Securitization Transaction
into the custodial account created for the securitization on the date of
the
Securitization
Transfer, or as soon as possible thereafter (but not to exceed 48 hours
after
such date).
Section
2.05 Permitted
Withdrawals From Custodial Account.
The
Servicer shall,
from time to time, withdraw funds from the Custodial Account for the following
purposes:
(i)
to
make payments to the Owner in the amounts and in the manner provided
for in Section 3.01;
(ii)
to
reimburse itself for Monthly Advances of the Servicer’s funds made pursuant
to Section 3.04, the Servicer’s right to reimburse itself pursuant to this
subclause
(ii) being limited to amounts received on the related Mortgage Loan (including
without
limitation, late recoveries of payments from the Mortgagor, Liquidation
Proceeds
and
Insurance Proceeds with respect to such Mortgage Loan to the extent collected)
which
represent late payments of principal and/or interest respecting which any
such
advance was made; it being understood that, in the case of any such
reimbursement, the Servicer’s right thereto shall be prior to the rights of the
Owner;
(iii)
to
reimburse itself for unreimbursed Servicing Advances, and any unpaid
Servicing
Fees, the Interim Servicer’s right to reimburse itself pursuant to this
subclause
(iii) with respect to any Mortgage Loan being limited to related Liquidation
Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may
be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan,
it
being understood that, in the case of any such reimbursement, the Servicer’s
right
thereto shall be prior to the rights of the Owner;
(iv)
to
pay itself pursuant to Section 4.03, as servicing compensation, interest
on
funds
deposited in the Custodial Account;
(v)
to
reimburse itself for expenses incurred and reimbursable to it pursuant
to
Section
4.03;
-17-
(vi)
to
clear and terminate the Custodial Account upon the termination of this
Agreement;
(vii)
to
withdraw funds deposited in error; and
(viii)
to
withdraw amounts collected under a blanket hazard insurance policy with
respect to a Second Lien Loan as provided for in Section 2.10, for application
to restoration
or repair of the Mortgaged Property in accordance with the procedures
outlined
in Section 2.13.
Section
2.06 Establishment
of and Deposits to Escrow Account.
The
Servicer shall
segregate and hold all funds collected and received pursuant to a Mortgage
Loan
constituting
Escrow Payments separate and apart from any of its own funds and general
assets
and
shall
establish and maintain one or more Escrow Accounts, in the form of time
deposit
or demand
accounts, titled, Avelo Mortgage, L.L.C., in trust for [insert Owner’s name]
Residential Fixed
and
Adjustable Rate Mortgage Loans, and various Mortgagors.” The Escrow Accounts
shall
be
established with a Qualified Depository, in a manner which shall provide
maximum
available
insurance by the FDIC and as otherwise acceptable to the Rating Agencies.
The
Servicer
and the Owner intend that the Escrow Accounts be Special Deposit Accounts.
Funds
deposited
in the Escrow Account may be drawn on by the Servicer in accordance with
Section
2.07. The creation of any Escrow Account shall be evidenced by a certification
in the form of Exhibit
4
hereto,
in the case of an account established with the Servicer, or by a letter
agreement
in the form of Exhibit
5
hereto,
in the case of an account held by a depository other than
the
Servicer. A copy of such certification shall be furnished to the Owner
and, upon
request,
to any subsequent Owner.
The
Servicer shall deposit in the Escrow Account or Accounts within two (2)
Business
Days of receipt thereof, and retain therein:
(i)
all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of effecting timely payment of any such items as required under the terms
of
this Agreement;
and
(ii)
all
amounts representing Insurance Proceeds or Condemnation Proceeds which
are
to be applied to the restoration or repair of any Mortgaged
Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect
such
payments as are required under this Agreement, as set forth in Section
2.07. The
Servicer shall be entitled to retain any interest paid on funds deposited
in the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor.
To the extent required by law, the Servicer shall pay interest on escrowed
funds
to the Mortgagor notwithstanding that the Escrow Account may be non-interest
bearing or that interest
paid thereon is insufficient for such purposes.
-18-
Section
2.07 Permitted
Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Servicer
only:
(i)
to
effect timely payments of ground rents, taxes, assessments, water rates,
mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or other items constituting Escrow Payments for the related
Mortgage;
(ii)
to
reimburse the Servicer for any Servicing Advance made by the Servicer
pursuant
to Section 2.08 with respect to a related Mortgage Loan, but only from
amounts
received
on the related Mortgage Loan which represent late collections of Escrow
Payments
thereunder;
(iii)
to
refund to any Mortgagor any funds found to be in excess of the amounts
required
under the terms of the related Mortgage Loan or applicable federal or state
law
or
judicial or administrative ruling;
(iv)
for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage
and Mortgage Note;
(v)
for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 2.13;
(vi)
to
pay to the Servicer, or any Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account;
(vii)
to
clear and terminate the Escrow Account on the termination of this Agreement;
and
(viii)
to
withdraw funds deposited in error.
Section
2.08 Payment
of Taxes. Insurance and Other Charges With Respect to First Lien
Loans.
With
respect to each First Lien Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates,
sewer
rents, and other
charges which are or may become a lien upon the Mortgaged Property and
the
status of fire and
hazard insurance coverage and shall obtain, from time to time, all bills
for the
payment of such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable
penalty or termination date, employing for such purpose deposits of the
Mortgagor in the
Escrow Account which shall have been estimated and accumulated by the Servicer
in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage.
To the
extent that a Mortgage does not provide for Escrow Payments, the Servicer
shall
determine that any such
payments are made by the Mortgagor at the time they first become due. The
Servicer shall monitor
the Mortgagor’s payment of such bills and shall promptly notify any Mortgagor in
breach
of
timely payments of such bills to remedy such breach. If after such notification,
such Mortgagor continues to fail to remedy the breach, the Servicer shall
arrange for the purchase of insurance
coverage which satisfied the requirements of Section 2.10 of this Agreement
on
behalf of
such
Mortgagor. The Servicer shall advance property taxes to protect each Mortgaged
Property
as may be provided for in the related Mortgage Loan Documents.
-19-
Section
2.09 Protection
of Accounts.
The
Servicer may transfer the Custodial Account
or the Escrow Account to a different Qualified Depository from time to
time.
Such transfer shall be made only upon obtaining the consent of the
Owner.
The
Servicer shall bear any expenses, losses or damages sustained by the Owner
because
the Custodial Account and/or the Escrow Account are not demand deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the
option
of
the Servicer be invested in Eligible Investments; provided
that
in
the event that amounts
on deposit in the Custodial Account or the Escrow Account exceed the amount
fully insured
by the FDIC (the “Insured
Amount”)
the
Servicer shall be obligated to invest the excess amount
over the Insured Amount in Eligible Investments on the same Business Day
as such
excess
amount becomes present in the Custodial Account or the Escrow Account.
Any such
Eligible Investment shall mature no later than the Determination Date next
following the date of such
Eligible Investment, provided,
however, that
if
such Eligible Investment is an obligation of a
Qualified Depository (other than the Servicer) that maintains the Custodial
Account or the Escrow Account, then such Eligible Investment may mature
on such
Remittance Date. Any such Eligible
Investment shall be made in the name of the Servicer in trust for the benefit
of
the Owner.
All income on or gain realized from any such Eligible Investment shall
be for
the benefit of
the
Servicer and may be withdrawn at any time by the Servicer. Any losses incurred
in respect
of any such investment shall be deposited in the Custodial Account or the
Escrow
Account,
by the Servicer out of its own funds immediately as realized.
Section
2.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained
for each First Lien Loan, hazard insurance such that all buildings upon
the
Mortgaged
Property are insured by a generally acceptable insurer which satisfies
the
hazard insurer ratings requirements of each of the Rating Agencies, against
loss
by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged
Property
is located, in an amount which is at least equal to the lesser of (i) the
maximum insurable
value of the improvements securing such First Lien Loan and (ii) the greater
of
(a) the outstanding
principal balance of the First Lien Loan and (b) an amount such that the
proceeds thereof
shall be sufficient to prevent the Mortgagor or the loss payee from becoming
a
co-insurer.
If
upon
origination of the First Lien Loan, the related Mortgaged Property was
located
in an area identified in the Federal Register by the Flood Emergency Management
Agency
as
having special flood hazards (and such flood insurance has been made available)
a flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance
Administration is in effect with a generally acceptable insurance carrier
which
satisfies the
flood
insurer ratings requirements of each of the Rating Agencies, in an amount
representing coverage
equal to the lesser of (i) the minimum amount required, under the terms
of
coverage, to compensate
for any damage or loss on a replacement cost basis (or the unpaid balance
of the
mortgage
if replacement cost coverage is not available for the type of building
insured)
and (ii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
First
Lien Loan, the Servicer determines
in accordance with applicable law and pursuant to the Xxxxxx Xxx Guides
that a
Mortgaged
Property is located in a special flood hazard area and is not covered by
flood
insurance
or is covered in an amount less than the amount required by the Flood Disaster
Protection
Act of 1973, as amended, the Servicer shall notify the related Mortgagor
that
the Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Servicer shall
immediately force place the required flood insurance on the Mortgagor’s
behalf.
-20-
If
a
Mortgage is secured by a unit in a condominium project, the Servicer shall
verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and
fidelity coverage, is being maintained in accordance with then current
Xxxxxx
Mae requirements,
and secure from the owner’s association its agreement to notify the Servicer
promptly
of any change in the insurance coverage or of any condemnation or casualty
loss
that may
have
a material effect on the value of the Mortgaged Property as
security.
The
Servicer shall cause to be maintained on each Mortgaged Property earthquake
or
such
other or additional insurance as may be required pursuant to such applicable
laws and regulations
as shall at any time be in force and as shall require such additional insurance,
or pursuant to the requirements of any private mortgage guaranty insurer,
or as
may be required to conform with Accepted Servicing Practices, in any instance,
only to the extent permitted by applicable laws or regulations and subject
to
the availability of such additional insurance in the marketplace.
In
the
event that the Owner or the Servicer shall determine that the Mortgaged
Property
should be insured against loss or damage by hazards and risks not covered
by the
insurance required to be maintained by the Mortgagor pursuant to the terms
of
the Mortgage, the Servicer
shall communicate and consult with the Mortgagor with respect to the need
for
such insurance and bring to the Mortgagor’s attention the desirability of
protection of the Mortgaged Property.
All
policies required hereunder shall name the Servicer as loss payee and shall
be
endorsed
with standard or New York mortgagee clauses, without contribution, which
shall
provide for at least 30 days prior written notice of any cancellation,
reduction
in amount or material
change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in
selecting
either his insurance carrier or agent, provided,
however, that
the
Servicer shall not accept
any such insurance policies from insurance companies unless such companies
satisfy the insurer
ratings requirements of each of the Rating Agencies and are licensed to
do
business in the jurisdiction
in which the Mortgaged Property is located. The Servicer shall determine
that
such policies provide sufficient risk coverage and amounts, that they insure
the
property owner, and that
they
properly describe the property address. The Servicer shall ensure that
appropriate insurance policies are in place in the required
coverages.
Pursuant
to Section 2.04, any amounts collected by the Servicer under any such
policies
(other than amounts to be deposited in the Escrow Account and applied to
the
restoration or
repair
of the related Mortgaged Property, or property acquired in liquidation
of the
First Lien Loan,
or
to be released to the Mortgagor, in accordance with the Servicer’s normal
servicing procedures
as specified in Section 2.13) shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.05.
-21-
With
respect to each Second Lien Loan, the Servicer shall obtain and maintain
the
blanket
hazard insurance policy in an amount equal to the unpaid principal balance
of
such Second
Lien Loan. Any amounts collected by the Servicer under any such policy
relating
to a Second Lien Loan shall be deposited in the Custodial Account subject
to
withdrawal pursuant to Section
2.05. Such policy may contain a standard deductible clause. Upon request
of the
Owner,
the Servicer shall cause to be delivered to the Owner a certified true
copy of
such policy and a statement from the insurer thereunder that such policy
shall
in no event be terminated or materially
modified without 30 days' prior written notice to the Owner.
Section
2.11 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Servicer shall maintain with responsible companies, at its own expense,
a
blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage
on all officers,
employees or other persons acting in any capacity requiring such persons
to
handle funds, money, documents or papers relating to the Mortgage Loans
(“Servicer
Employees”).
Any
such
Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of
the Mortgage
Banker’s Blanket Bond and shall protect and insure the Servicer against losses,
including
forgery, theft, embezzlement, fraud, errors and omissions and negligent
acts of
such Servicer Employees. Such Fidelity Bond and Errors and Omissions
Insurance
Policy also shall protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage
Loan without having obtained payment in full of the indebtedness secured
thereby. No
provision of this Section 2.11 requiring such Fidelity Bond and Errors
and
Omissions Insurance
Policy shall diminish or relieve the Servicer from its duties and obligations
as
set forth in this Agreement. The minimum coverage under any such bond
and
insurance policy shall be at least equal to the corresponding amounts
required
by Xxxxxx Xxx in the Xxxxxx Mae Guides or by
Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx/Servicer Guide. Upon the request
of the
Owner, the Servicer shall cause to be delivered to the Owner a certified
true
copy of such fidelity bond and insurance policy and a statement from
the surety
and the insurer that such fidelity bond and insurance policy shall in
no event
be terminated or materially modified without 30 days’ prior written
notice to the Owner.
Section
2.12 Inspections.
The
Servicer shall inspect the Mortgaged Property as often
as
deemed necessary by the Servicer to assure itself that the value of the
Mortgaged Property
is being preserved. In addition, if any Mortgage Loan is more than 60
days
delinquent, the
Servicer immediately shall inspect the Mortgaged Property (provided
that if
the
Servicer is in communication
with the Mortgagor with respect to bringing the Mortgage Loan current
the
Servicer
shall conduct inspections in accordance with Accepted Servicing Practices)
and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer.
The
Servicer shall keep a written report of each
such
inspection.
Section
2.13 Restoration
of Mortgaged Property.
The
Servicer need not obtain the
approval of the Owner prior to releasing any Insurance Proceeds or Condemnation
Proceeds to
the
Mortgagor to be applied to the restoration or repair of the Mortgaged
Property
if such release
is in accordance with Accepted Servicing Practices. At a minimum, the
Servicer
shall comply
with the following conditions in connection with any such release of
Insurance
Proceeds or
Condemnation Proceeds:
-22-
(i)
the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii)
the
Servicer shall take all steps necessary to preserve the priority of the
lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’
and materialmen’s liens;
(iii)
the
Servicer shall verify that the Mortgage Loan is not in default; and
(iv)
pending repairs or restoration, the Servicer shall place the Insurance
Proceeds
or Condemnation Proceeds in the Escrow Account.
If
the
Owner is named as an additional loss payee, the Servicer is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name
of the
Owner.
Section
2.14 Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof
by the
Owner pursuant to a deed in lieu of foreclosure, the Servicer
shall submit to the Owner a liquidation report with respect to such Mortgaged
Property.
Section
2.15 Notification
of Adjustments.
With
respect to each Mortgage Loan, the
Servicer shall adjust the Mortgage Interest Rate on the related Interest
Rate
Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage
and
Mortgage Note.
The
Servicer shall execute and deliver any and all necessary notices required
under
applicable
law and the terms of the related Mortgage Note and Mortgage regarding
the
Mortgage Interest
Rate adjustments. The Servicer shall promptly, upon written request therefor,
deliver to the Owner such notifications and any additional applicable
data
regarding such adjustments and the
methods used to calculate and implement such adjustments. Upon the discovery
by
the Servicer
or the receipt of notice from the Owner that the Servicer has failed
to adjust a
Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note, the Servicer
shall immediately
deposit in the Custodial Account from its own funds the amount of any
interest
loss or
deferral caused the Owner thereby.
Section
2.16 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment
of any
Mortgaged Property, the Servicer
shall report such foreclosure or abandonment as required pursuant to
Section
6050J of the
Code.
Section
2.17 Credit
Reporting.
The
Servicer shall report the Mortgagor credit files
to
each of the three major credit reporting agencies on a monthly basis
consistent
with Accepted
Servicing Practices.
Section
2.18 Title,
Management
and
Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure
or by
deed
in
lieu of foreclosure, the deed or certificate of sale shall be taken in
the name
of the Servicer
on behalf of the Owner and without reference to the Owner except as otherwise
required by
law.
The Person or Persons holding such title other than the Owner shall acknowledge
in writing that such title is being held as nominee for the Owner.
-23-
The
Servicer shall manage, conserve, protect and operate each REO Property
for
the
Owner
solely for the purpose of its prompt disposition
and
sale. In consideration therefor, the
Owner
shall pay the Servicer the REO Management Fee. The Servicer, either itself
or
through
an agent selected by the Servicer, shall manage, conserve, protect and
operate
the REO Property
in the same manner that it manages, conserves, protects and operates
other
foreclosed property
for its own account, and in the same manner that similar property in
the same
locality as the
REO
Property is managed. The Servicer shall attempt to sell the same (and
may
temporarily rent
the
same for a period not greater than one year, except as otherwise provided
below)
on such terms
and
conditions as the Servicer deems to be in the best interest of the Owner
in
accordance with
Accepted Servicing Practices. The Servicer shall provide the Owner on
a monthly
basis a report
on
the status of each REO Property.
The
Servicer shall use commercially
reasonable efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within
one
year after title
has
been taken to such REO Property, unless the Servicer determines, and
gives an
appropriate
notice to the Owner to such effect, that a longer period is necessary
for the
orderly liquidation
of such REO Property. If a period longer than one year is permitted under
the
foregoing
sentence and is necessary to sell any REO Property, the Servicer shall
report
monthly to
the
Owner as to the progress being made in selling such REO Property.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in an amount which is at least equal
to the
maximum insurable value of the
improvements which are a part of such property, liability insurance and,
to the
extent required
and available under the National Flood Insurance Act of 1968, as amended,
flood
insurance
in the amount required in Section 2.10 hereof.
The
disposition of REO Property
shall be
carried out by the Servicer at such price, and
upon
such terms and conditions, as the Servicer deems to be in the best interests
of
the Owner in accordance with Accepted Servicing Practices. The proceeds
of sale
of the REO Property
shall be promptly deposited in the Custodial Account pursuant to the
terms of
this Agreement but not later than the second Business Day following receipt
thereof. As soon as practical
thereafter, the expenses of such sale shall be paid and the Servicer
shall
reimburse itself for
any
related unreimbursed Servicing Advances and unpaid Servicing Fees made
pursuant
to this
Section 2.18.
With
respect to each REO Property, the Servicer shall hold all funds collected
and
received
in connection with the operation of the REO Property
in the
Custodial Account. The Servicer
shall cause to be deposited on or prior to the second Business Day following
the
receipt thereof
in each Custodial Account all revenues received with respect to the conservation
and disposition
of the related REO Property.
-24-
Section
2.19 Permitted Withdrawals with Respect to REO Property.
The
Servicer shall withdraw funds on deposit in the Custodial Account with
respect
to each related REO Property necessary for the proper operation, management
and
maintenance
of the REO Property, including the cost of maintaining any hazard insurance
pursuant to Section 2.10 and the fees of any managing agent acting
on behalf of
the Servicer. The
Servicer shall make monthly distributions on each Remittance Date to
the Owner
of the net cash
flow
from the REO Property (which shall equal the revenues from such REO
Property net
of the expenses described in Section 2.18 and of any reserves reasonably
required from time to time
to
be maintained to satisfy anticipated liabilities for such
expenses).
Section
2.20 Real Estate Owned Reports.
Together
with the statement furnished pursuant to Section 2.21, the Servicer
shall
furnish
to the Owner on or before the 5th Business Day of each month a report
with
respect to any
REO
Property covering the operation of such REO Property for the previous
month and
the Servicer’s
efforts in connection with the sale of such REO Property and any rental
of such
REO Property
incidental to the sale thereof for the previous month. That statement
shall be
accompanied
by such other information available to the Servicer as the Owner shall
reasonably request.
Section
2.21 Reports of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the
Servicer
shall report such foreclosure or abandonment as required pursuant to
Section
6050J of the
Code.
Section
2.22 Recordation of Assignments of Mortgage.
Except
in
connection with Accepted Servicing Practices for defaulted Mortgage
Loans, the
Servicer shall not be responsible for the preparation or recording
of the
Assignments of
Mortgage relating to the Mortgage Loans to the Owner, the securitization
trustee
or any other party;
provided,
however, that
in
the event the Servicer agrees to record any mortgage assignment,
any expense, including the fees of third party service providers, incurred
by
the Servicer
in connection with the preparation and recordation of Assignments of
Mortgage
shall be reimbursable
by the Owner, or if not reimbursed by the Owner, as a Servicing Advance.
The
Servicer
shall not be liable for, and shall be indemnified by the Owner, against
any
losses, costs, penalties and damages incurred as a result of incorrect
or
incomplete, or untimely submission of, Assignments of Mortgage and
applicable
recording information.
Section
2.23 Additional Servicing Requirements.
In
addition to its other obligations, under this Agreement, the Servicer
shall:
(a) Obtain
updated FICO scores quarterly for the entire portfolio at the Owner’s
expense.
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(b) apply
all
payments received from Mortgagors to principal and interest prior
to
any application of advances or fees.
(c) make
staff available to participate in weekly calls, as needed, to discuss
loans
in
default including foreclosures, bankruptcy and REO Properties; and
(d) adhere
to
the additional requirements relating to REO Property set forth in Exhibit
8
(in the case of Mortgage Loans identified by the Owner in the related
Notice
Letter as subprime
mortgage loans) and Exhibit 9.
Section
2.24 Tax and Flood Service Contracts.
The
Servicer, at Owner’s expense, shall cause each Mortgage Loan which is
transferred
to the Servicer for servicing to be covered by (a) with respect to
each First
Lien Loan only, a Tax Service Contract and (b) Flood Zone Service Contract.
Servicer shall place such Tax Service
Contracts and Flood Service Contracts in place, and shall xxxx the
Owner the fee
associated
with acquiring such contracts.
ARTICLE
III
PAYMENTS
TO OWNER
Section
3.01 Remittances. On each Remittance Date the Servicer shall remit by
wire
transfer of immediately available funds to the Owner (a) all amounts
deposited
in the Custodial
Account for the related Due Period (net of charges against or withdrawals
from
the Custodial Account pursuant to Section 2.05), plus (b) all amounts,
if any,
which the Servicer is obligated
to remit pursuant to Section 3.04, minus (c) any amounts attributable
to
Principal Prepayments
received after the applicable Principal Prepayment Period which amounts
shall be
remitted
on the following Remittance Date, together with any additional interest
required
to be deposited
in the Custodial Account in connection with such Principal Prepayment
in
accordance with
Section 2.04(viii), and minus (d) any amounts attributable to Monthly
Payments
collected but
due
on a Due Date or Dates subsequent to the first day of the month of
the
Remittance Date, which
amounts shall be remitted on the applicable Remittance Date.
For
all
purposes of this Agreement, delinquency status shall be determined
in accordance
with standard ABS or RMBS methodology, as is appropriate, as determined
by the
Owner
for
the applicable Mortgage Loan type as set forth in the related Notice
Letter.
With
respect to any remittance received by the Owner after the second Business
Day
following the Business Day on which such payment was due, the Servicer
shall pay
to the Owner
interest on any such late payment at an annual rate equal to the Prime
Rate,
adjusted as of the date of each change, plus three percentage points,
but in no
event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the
Custodial
Account by
the
Servicer on the date such late payment is made and shall cover the
period
commencing with the day the payment was due and ending with the Business
Day on
which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next
succeeding Remittance Date. The payment by the Servicer of any such
interest
shall not be deemed an extension of time for payment or a waiver of
any Event of
Default by the Servicer.
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Section
3.02 Statements to Owner. Not later than the date which is two
Business
Days prior to the Remittance Date, the Servicer shall furnish to the
Owner a
monthly remittance
advice with all of the information required by Schedule 1 hereto, with a
trial balance report
attached thereto in the form of Exhibit 1 hereto in hard copy and
electronic medium mutually
acceptable to the parties as to the preceding remittance and the period
ending
on the preceding
Determination Date. At a minimum, the trial balance report must contain
the
fields attached as Schedule 1 to Exhibit 1 hereto and Static Pool
Information regarding the Mortgage Loans.
In
addition, not more than 60 days after the end of each calendar year,
the
Servicer
shall furnish to each Person who was a Owner at any time during such
calendar
year an annual statement in accordance with the requirements of applicable
federal income tax law as to the aggregate of remittances for the applicable
portion of such year.
Such
obligation of the Servicer shall be deemed to have been satisfied to
the
extent
that substantially comparable information shall be provided by the
Servicer
pursuant to any
requirements of the Code as from time to time are in force.
The
Servicer shall prepare and file any and all tax returns, information
statements
or
other
filings required to be delivered to any governmental taxing authority
or to the
Owner pursuant
to any applicable law with respect to the Mortgage Loans and the transactions
contemplated
hereby. In addition, the Servicer shall provide the Owner with such
information
concerning the Mortgage Loans as is necessary for the Owner to prepare
its
federal income tax return
as
the Owner may reasonably request from time to time.
Section
3.03 Advances by Servicer. Except as otherwise provided herein, the
Servicer
shall be entitled to first priority reimbursement pursuant to Section
2.07
hereof for Servicing
Advances from recoveries from the related Mortgagor or from all Liquidation
Proceeds
and other payments or recoveries (including Insurance Proceeds and
Condemnation
Proceeds)
with respect to the related Mortgage Loan.
Section
3.04 Principal and Interest Advances by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer
shall
deposit in the Custodial Account from its own funds or from amounts
held for
future distribution, or both, an amount equal to all Monthly Payments
(with
interest adjusted to the Mortgage
Loan Rate minus the applicable Servicing Fee Rate) which were due on
the
Mortgage Loans
during the applicable Due Period and which were delinquent on the Business
Day
immediately
preceding such Remittance Date or which were deferred pursuant to Section
4.01.
Any
amounts held for future distribution and so used shall be replaced
by the
Servicer by deposit in
the
Custodial Account on or before any future Remittance Date if funds
in the
Custodial Account
on such Remittance Date shall be less than remittances to the Owner
required to
be made
on
such Remittance Date. The Servicer shall keep appropriate records of
such
amounts. The
Servicer’s obligation to make such Monthly Advances as to any Mortgage Loan
will
continue
through the last Monthly Payment due prior to the payment in full of
the
Mortgage Loan,
or
through the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds
and
Condemnation
Proceeds) with respect to the Mortgage Loan;
provided, that
the
Servicer shall not be
obligated to make Monthly Advances which the Servicer determines to
be
Nonrecoverable Advances.
The Servicer shall not be obligated to advance shortfalls of interest
resulting
from the application of the Servicemembers’ Civil Relief Act or any similar
state laws.
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ARTICLE
IV
GENERAL
SERVICING PROCEDURES
Section
4.01 Transfers of Mortgaged Property. The Servicer shall use its best
efforts
to enforce any “due-on-sale” provision contained in any Mortgage or Mortgage
Note and to
deny
assumption by the person to whom the Mortgaged Property has been or is about
to
be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged Property has
been conveyed
by the Mortgagor, the Servicer shall, to the extent it has knowledge of such
conveyance,
exercise its rights to accelerate the maturity of such Mortgage Loan under
the
“due-on-sale”
clause applicable thereto.
If
the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall enter into (i) an assumption and
modification agreement
with the person to whom such property has been conveyed, pursuant to which
such
person
becomes liable under the Mortgage Note and the original Mortgagor remains liable
thereon
or (ii) in the event the Servicer is unable under applicable law to require
that
the original Mortgagor
remain liable under the Mortgage Note and the Servicer has the prior
consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability
and
the purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage
Note. The Servicer shall be entitled to retain as additional servicing
compensation any assumption
fees collected by the Servicer in connection with a Mortgagor entering into
an
assumption
agreement. In connection with any such assumption, neither the Mortgage Interest
Rate borne by the related Mortgage Note, the term of the Mortgage Loan nor
the
outstanding principal
amount of the Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee which
are used by the Servicers and their affiliates with respect to underwriting
mortgage loans of the same type as the Mortgage Loans.
If
the credit of the proposed transferee does not meet such underwriting criteria,
the Servicer
diligently shall, to the extent permitted by the Mortgage or the Mortgage Note
and by applicable
law, accelerate the maturity of the Mortgage Loan.
Section
4.02 Satisfaction of Mortgages and Release of Mortgage Files. Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment
in full will be escrowed in a manner customary for such purposes, the Servicer
shall notify
the Owner in the monthly remittance advice as provided in Section 3.02, and
may
request the
release of any Mortgage Loan Documents from the Owner in accordance with this
Section
4.02 hereof.
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If
the
Servicer satisfies or releases a Mortgage without first having obtained
payment
in full of the indebtedness secured by the Mortgage (or such lesser amount
in
connection
with a discounted payoff accepted by the Servicer with respect to a defaulted
Mortgage
Loan) or should the Servicer otherwise prejudice any rights the Owner may have
under the
mortgage instruments, if Servicer is unable to reasonably demonstrate that
it
will be able to cause
the
amount of the unpaid indebtedness to be reinstated and secured under the related
Mortgage, or if the Mortgagor becomes thirty (30) or more days delinquent
following such erroneous release, regardless of Servicer’s ability to obtain
reinstatement, upon the Servicer’s receiving
knowledge of such an event or upon written demand of the Owner, whichever is
earlier,
the Servicer shall deposit the amount of any shortfall thereof in the Custodial
Account within
2
Business Days of receipt of such demand by the Owner; provided,
however, that with respect
to any such Mortgage Loan subject to judicial action, the Servicer’s obligations
under this
sentence shall be limited to giving the Owner notice of such judicial action
and
using good faith efforts to reinstate and secure the amount of the unpaid
indebtedness under the related Mortgage. The Servicer shall maintain the
Fidelity Bond and Errors and Omissions Insurance Policy as provided for in
Section 2.11 insuring the Servicer against any loss it may sustain with
respect
to any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section
4.03 Servicing Compensation. As consideration for servicing the
Mortgage
Loans pursuant to this Agreement, the Servicer shall be entitled to retain
the
applicable Servicing
Fee from payments on the Mortgage Loans or to withdraw the applicable Servicing
Fee with respect to each Mortgage Loan from the Custodial Account pursuant
to
Section 2.05 hereof.
The obligation of the Owner to pay, and the Servicer’s right to withdraw, the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section
2.05) of such Monthly Payment collected by the Servicer, or as otherwise
provided under Section
2.05. The Servicer shall be entitled to all accrued and unpaid Servicing Fees
upon the termination
of its servicing of the related Mortgage Loans.
Additional
servicing compensation in the form of Ancillary Income shall be retained
by the Servicer to the extent not required to be deposited in the Custodial
Account. The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities
hereunder and shall not be entitled to reimbursement thereof except as
specifically provided
for herein.
Section
4.04 Right to Examine Servicer Records. So long as any Mortgage
Loan
are
being serviced hereunder and for a reasonable period after servicing has been
transferred,
the Owner shall have the right to examine and audit any and all of the books,
records,
or other material information of the Servicer, whether held by the Servicer
or
by another on
its
behalf, with respect to or concerning this Agreement or the Mortgage Loans,
during business
hours or at such other times as may be reasonable under applicable
circumstances, upon reasonable advance notice.
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Section
4.05 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999. With respect
to
each
Mortgage Loan and the related Mortgagor, the Servicer shall comply with Title
V
of the Xxxxx-Xxxxx-Xxxxxx
Act of 1999, as amended, and all applicable regulations and guidelines
promulgated
thereunder, and shall provide all notices required thereunder using the notice
language
supplied by the Owner.
ARTICLE
V
SERVICER
TO COOPERATE
Section
5.01 Provision of Information. During the term of this Agreement, the
Servicer
shall furnish to the Owner such periodic, special, or other reports or
information, whether
or not provided for herein, as shall be necessary, reasonable, or appropriate
with respect to
the
Owner or the purposes of this Agreement. All such reports or information shall
be provided
by and in accordance with all reasonable instructions and directions which
the
Owner may
give.
The
Servicer shall execute and deliver all such instruments and take all such
action
as
the Owner may reasonably request from time to time, in order to effectuate
the
purposes
and to carry out the terms of this Agreement.
Section
5.02 Financial Statements; Servicing Facilities. So long as any
Mortgage
Loan is being serviced hereunder and for a reasonable period after servicing
has
been transferred, in connection with marketing the Mortgage Loans, the Owner
may
make available to a
prospective Owner a Consolidated Statement of Operations of the Servicer for
the
most recently
completed three fiscal years for which such a statement is available, as well
as
a Consolidated Statement of Condition at the end of the last two fiscal years
covered by such Consolidated
Statement of Operations. The Servicer also shall make available any comparable
interim statements to the extent any such statements have been prepared by
or on
behalf of the Servicer (and are available upon request to members or
stockholders of the Servicer or to the public
at
large). If it has not already done so, the Servicer shall furnish promptly
to
the Owner copies
of
the statement specified above.
So
long
as any Mortgage Loan is being serviced hereunder and for a reasonable
period
after servicing has been transferred, the Servicer shall make available to
the
Owner or any prospective
Owner a knowledgeable financial or accounting officer for the purpose of
answering questions
respecting recent developments affecting the Servicer or the financial
statements of the Servicer,
and to permit any prospective Owner to inspect the Servicer’s servicing
facilities for the
purpose of satisfying such prospective Owner that the Servicer has the ability
to service the Mortgage
Loans as provided in this Agreement.
Section
5.03 Covenant.
The Servicer shall use its best efforts to (i) obtain servicer
ratings of at least “Average”
from Standard & Poor’s and “RPS2-” from Fitch and (ii) become a Xxxxxx
Xxx and
Xxxxxxx Mac approved servicer, in either case, as soon as practicable.
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ARTICLE
VI
TERMINATION
Section
6.01 Liability
of the Owner and the Servicer.
The
Owner and the Servicer
shall each be liable in accordance with the terms of this Agreement only to
the
extent of the
obligations specifically and respectively imposed upon and undertaken by the
Owner and Servicer
in this Agreement.
Section
6.02 Termination.
(a) This
Agreement shall terminate with respect to the
Mortgage Loans or any portion thereof transferred on the related Subsequent
Transfer Date or
on
such other date as mutually agreed upon by the Owner and the Servicer. The
Owner
may elect
to
terminate this Agreement and transfer the servicing from the Servicer prior
to
the related Subsequent Transfer Date with respect to all or any portion of
the
Mortgage Loans by providing written
notice to the Servicer at least 30 days prior to the date on which it intends
to
transfer the servicing
of its intent to transfer the servicing from the Servicer.
In
the
event the Servicer is terminated pursuant to the terms of this Agreement,
the
Servicer agrees to cooperate with the Owner and with any party designated as
the
successor servicer
or subservicer in transferring the servicing to such successor servicer. In
addition, the Servicer
shall be responsible for notifying the related Mortgagors of any transfer of
servicing in accordance
with the requirements of the RESPA and the Xxxxxxxx Xxxxxxxx National Affordable
Housing Act of 1990, as amended.
On
or
before the related Subsequent Transfer Date or such other date specified by
the
Owner
in accordance with this Section 6.02(a) for the transfer of servicing from
the
Servicer, the
Servicer shall prepare, execute and deliver to the successor entity designated
by the Owner any and all documents and other instruments, place in such
successor’s possession all Mortgage Loan Documents necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to
the transfer and endorsement or assignment of the Mortgage Loans and
related documents. The Servicer shall cooperate with the Owner and such
successor in effecting
the termination of the Servicer’s responsibilities and rights
hereunder.
On
the
related Subsequent Transfer Date for each Mortgage Loan, this Agreement,
except for Articles VI, VIII, IX and X which shall survive the related
Subsequent Transfer Date, shall terminate.
(b) Servicing
Advances.
On or
before the date which is five (5) days after the related
Subsequent Transfer Date, the Owner or its designee shall reimburse the Servicer
for any Servicing
Advances and Monthly Advances with respect to any Mortgage Loan. This
Section
6.02(b) shall survive the related Subsequent Transfer Date; provided
that
neither the Owner
nor
its designee shall be obligated to reimburse the Servicer for any Servicing
Advances or
Monthly Advances which are reasonably deemed to be nonrecoverable by the Owner
or its designee
as of the related Subsequent Transfer Date in its sole reasonable
discretion.
(c) Additional
Termination Provisions.
Notwithstanding and in addition to the
foregoing, in the event that (i) a Mortgage Loan becomes delinquent for a period
of 90 days or
more
(a “Delinquent
Mortgage Loan”)
or (ii)
a Mortgage Loan becomes an REO Property, the Owner
may
at its election terminate this Agreement with respect to such Delinquent
Mortgage Loan
or
REO Property, upon 15 days' written notice to the Servicer, and have servicing
transferred
to a successor servicer.
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ARTICLE
VII
BOOKS
AND RECORDS
Section
7.01 Possession
of Servicing Files Prior to the Subsequent Transfer Date.
Prior
to the related Subsequent Transfer Date, the contents of each Servicing File
are
and shall
be
held in trust by the Servicer for the benefit of the Owner as the owner thereof.
The Servicer
shall maintain in the Servicing File a copy of the contents of each Mortgage
File and the originals
(or imaged copies) of the documents in each Mortgage File not delivered to
the
Owner. The
possession of the Servicing File by the Servicer is at the will of the Owner
for
the sole purpose
of servicing the related Mortgage Loan, pursuant to this Agreement, and such
retention and
possession by the Servicer is in its capacity as Servicer only and at the
election of the Owner.
The Servicer shall release its custody of the contents of any Servicing File
only in accordance
with written instructions from the Owner, unless such release is required as
incidental
to the Servicer’s servicing of the Mortgage Loans pursuant to this Agreement, or
is in connection
with a repurchase of any Mortgage Loan from the Owner.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set
of
books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership
of each Mortgage Loan by the Owner. In particular, the Servicer shall maintain
in its possession, available for inspection by the Owner or its designee, and
shall deliver to the Owner or its designee upon demand, evidence of compliance
with all federal, state and local laws, rules and
regulations, and requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended,
to
the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval
by
Xxxxxx
Mae and periodic inspection reports as required by Section 2.12.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the
terms
hereof. For the purposes of this Agreement, the Servicer shall be under no
obligation to
deal
with any person with respect to this Agreement or the Mortgage Loans unless
the
books and
records show such person as the owner of the Mortgage Loan. The Owner may,
subject to the
terms
of this Agreement, sell or transfer one or more of the Mortgage Loans. The
Owner
also
shall advise the Servicer of the transfer. Upon receipt of notice of the
transfer, the Servicer shall
xxxx its books and records to reflect the ownership of the Mortgage Loans of
such assignee,
and shall release the previous Owner from its obligations hereunder with respect
to the Mortgage
Loans sold or transferred.
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ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
Section
8.01 Indemnification.
(a) The
Servicer agrees to indemnify and hold the Owner and any successor servicer
harmless from any liability, claim, loss or damage (including, without
limitation, any reasonable
legal fees, judgments or expenses relating to such liability, claim, loss or
damage) to the
Owner
directly or indirectly resulting from the Servicer's failure:
(i)
to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement
including,
without limitation, Sections 4.04 and 4.05; or
(ii)
to
comply with all applicable requirements with respect to the servicing of the
Mortgage Loans as set forth herein.
The
Servicer immediately shall notify the Owner if a claim is made by a third
party
with respect to this Agreement. For purposes of this Section 8.01(a), “Owner”
shall mean the
Person then acting as the Owner under this Agreement and any and all Persons
who
previously
were “Owners” under this Agreement.
(b) The
Owner
agrees to indemnify and hold the Servicer harmless from any liability,
claim, loss or damage (including without limitation, any reasonable legal fees,
judgments
or expenses relating to such liability, claim, loss or damage) to the Servicer
(i)
directly or indirectly resulting from the Owner’s failure to observe and perform
any or all of the
Owner’s duties, obligations, covenants, agreements, warranties or
representations contained in
this
Agreement or (ii) directly resulting from the Servicer taking any legal actions
with respect to
any
Mortgage Loans and/or REO Properties in the name of the Servicer and without
reference to
the
Owner, or (iii) any act or omission on the part of the Owner, any prior servicer
or any other
third party which occurred in connection with the prior servicing of a Mortgage
Loan, but, in
each
case, only to the extent such loss does not result from the failure of the
Servicer (x) to observe
and perform any or all of Servicer’s duties, obligations, covenants, agreements,
warranties
or representations contained in this Agreement or in any other agreement
pursuant to which
the
Servicer services or has serviced any such Mortgage Loan; or (y) to comply
with
all applicable
requirements with respect to the servicing of the Mortgage Loans as set forth
in
this Agreement
or in any other agreement pursuant to which the Servicer services or has
serviced any such
Mortgage Loan.
Section
8.02 Limitation
on Liability of Servicer and Others.
Neither
the Servicer nor any of the directors, members, officers, employees or
agents
of
the Servicer shall be under any liability to the Owner for any action taken
or
for refraining
from the taking of any action in good faith pursuant to this Agreement, or
for
errors in judgment,
provided,
however, that
this
provision shall not protect the Servicer or any such person against
any breach of warranties or representations made herein, its own negligent
actions, or failure
to perform its obligations in compliance with any standard of care set forth
in
this Agreement,
or any liability which would otherwise be imposed by reason of any breach of
the
terms
and
conditions of this Agreement. The Servicer and any director, member, officer,
employee
or agent of the Servicer may rely in good faith on any document of any kind
prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement
and which in its opinion may involve it in any expense or liability,
provided,
however,that
the
Servicer may undertake any such action which it may deem necessary or
desirable
in respect to this Agreement and the rights and duties of the parties hereto.
In
such event,
the Servicer shall be entitled to reimbursement from the Owner of the reasonable
legal expenses
and costs of such action.
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Section
8.03 Limitation
on Resignation and Assignment by Servicer.
The
Owner
has entered into this Agreement with the Servicer and subsequent purchasers
will purchase the Mortgage Loans in reliance upon the independent status
of the
Servicer,
and the representations as to the adequacy of its servicing facilities, plant,
personnel, records
and procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall not assign this Agreement
or
the servicing hereunder or delegate
its rights or duties hereunder or any portion hereof or sell or otherwise
dispose of all or substantially all of its property or assets without the
prior
written consent of the Owner, which consent shall be granted or withheld
in the
reasonable discretion of the Owner.
The
Servicer may, without the consent of the Owner, retain third party contractors
to
perform certain servicing and loan administration functions, including without
limitation, hazard insurance administration, tax payment and administration,
flood certification and administration,
collection services and similar functions; provided,
that
the
retention of such contractors
by Servicer shall not limit the obligation of the Servicer to service the
Mortgage Loans
pursuant to the terms and conditions of this Agreement.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except
by
mutual consent of the Servicer and the Owner or upon the determination that
its
duties hereunder
are no longer permissible under applicable law and such incapacity cannot
be
cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced
by an Opinion of Counsel to such effect delivered to the Owner which Opinion
of
Counsel
shall be in form and substance acceptable to the Owner. No such resignation
shall become
effective until a successor shall have assumed the Servicer’s responsibilities
and obligations
hereunder in the manner provided in Section 6.02.
Without
in any way limiting the generality of this Section 8.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate
its duties hereunder or any portion thereof or sell or otherwise dispose
of all
or substantially
all of its property or assets without the prior written consent of the Owner,
then the Owner
shall have the right to terminate this Agreement upon notice given as set
forth
in Section
6.02(a), without any payment of any penalty or damages and without any liability
whatsoever
to the Servicer or any third party.
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Notwithstanding
any provision in this Agreement to the contrary, the Servicer may
at
any time upon notice to the Owner, or trustee in the case of a Reconstitution,
and without the
consent of any party, solely in connection with a financing or other facility
(any such arrangement,
an “Advance
Facility”),
assign as collateral security or pledge to another Person all its
rights, title and interest under this Agreement to its rights to reimbursement
of Servicing Advances.
Section
8.04 Assignment
by Owner.
Subject
to the limitations and requirements set forth in this Agreement, the Owner
shall
have the right, to assign, in whole or in part, its interest under this
Agreement with respect to
some
or all of the Mortgage Loans, and designate any person to exercise any rights
of
the Owner
hereunder.
Section
8.05 Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as
a
limited
liability company under the laws of the state of its filing except as permitted
herein, and will
obtain and preserve its qualification to do business as a foreign corporation
in
each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability
of this Agreement, or any of the Mortgage Loans and to perform its duties
under
this Agreement. Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation (including by means of the sale of all or substantially all
of the
Servicer’s assets to such Person) to which the Servicer shall be
a
party, or any Person succeeding to the business of the Servicer (whether
or not
related to loan
servicing), shall be the successor of the Servicer hereunder, without the
execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary
notwithstanding; provided,
however, that
the
Servicer shall not, without the prior written
approval of the Owner, be a party to any such merger, conversion or
consolidation, or sell or otherwise dispose of all or substantially all of
its
business or assets if, (i) asa
result
of such
merger, conversion or consolidation, sale or other disposition, an Event
of
Default under Section 11.01 hereof would exist with respect to such successor
Servicer or (ii) such successor has
(a) a
residential primary servicer rating for servicing of mortgage loans issued
by
Standard & Poor’s
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., Fitch, Inc.
or
Xxxxx'x
Investors
Service, Inc. below “average” or its equivalent or (b) a net worth of less than
$25,000,000.
The
Servicer shall give 90 days, prior written notice to the Owner to the extent
permitted
by applicable law of any such merger, conversion, consolidation, sale or
other
disposition
to which the Servicer proposes to be a party. In the event that any successor
entity to the Servicer fails to meet the requirements set forth in this Section
8.05 and the Owner does not consent to such successor becoming the servicer
hereunder, then the Servicer shall have the right to
terminate this Agreement with respect to the Servicer and any such successor
upon notice given
as
set forth in Section 6.01, without any payment of any termination penalty
or
termination damages
and without any additional liability whatsoever to the Servicer or any third
party, except
for liabilities accrued under this Agreement prior to the date of termination
and for liabilities
resulting from Owner’s obligations hereunder, including the payment of the
Servicing Fee
pursuant to Section 4.03.
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ARTICLE
IX
REPRESENTATIONS
AND WARRANTIES
Section
9.01 Representations
and Warranties Regarding the Servicer.
As of
the date
hereof and on each date on which a Mortgage Loan Package becomes subject
to the
terms of this
Agreement, the Servicer warrants and represents to, and covenants and agrees
with, the Owner
as
follows:
(a)
Due
Organization and Authority.
The
Servicer is a Delaware limited liability
company duly organized, validly existing and in good standing under the laws
of
Delaware
and has all licenses necessary to carry on its business as now being conducted
and is licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer, and in any event the Servicer is in
compliance with the laws of any such state to the extent necessary to ensure
the
enforceability of the related Mortgage Loan in accordance
with the terms of this Agreement; the Servicer has the full power and authority
to execute
and deliver this Agreement and to perform in accordance herewith; the execution,
delivery
and performance of this Agreement (including all instruments or transfer
to be
delivered pursuant
to this Agreement) by the Servicer and the consummation of the transactions
contemplated
hereby have been duly and validly authorized; this Agreement evidences the
valid, binding and enforceable obligation of the Servicer; and all requisite
action has been taken by the Servicer
to make this Agreement valid and binding upon the Servicer in accordance
with
its terms;
(c)
Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer.
(d)
No
Conflicts.
Neither
the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with
or
result in a breach of any of the terms, conditions or provisions of the
Servicer’s certificate
of formation or limited liability company agreement or any legal restriction
or
any agreement
or instrument to which the Servicer is now a party or by which it is bound,
or
constitute
a default or result in an acceleration under any of the foregoing, or result
in
the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer
or
its property
is subject, or impair the ability of the Owner to realize on the Mortgage
Loans,
or impair
the value of the Mortgage Loans.
(e)
Ability
to Service.
The
Servicer has the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same
type
as the
Mortgage Loans. The Servicer is in good standing to enforce and service mortgage
loans in the
jurisdiction wherein the Mortgaged Properties are located.
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(f) Ability
to Perform.
The
Servicer does not believe, nor does it have any reason
or
cause to believe, that it cannot perform each and every covenant contained
in
this Agreement.
(g) No
Litigation Pending.
There
is no action, suit, proceeding or investigation
pending or to the best of Servicer’s knowledge threatened against the Servicer,
before
any court, administrative agency or other tribunal asserting the invalidity
of
this Agreement,
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement
or which, either in any one instance or in the aggregate, may result in
any
material adverse
change in the business, operations, financial condition, properties or
assets of
the Servicer,
or in any material impairment of the right or ability of the Servicer to
carry
on its business
substantially as now conducted, or in any material liability on the part
of the
Servicer, or
which
would draw into question the validity of this Agreement, or the Mortgage
Loans
or of any action taken or to be taken in connection with the obligations
of the
Servicer contemplated herein,
or which would be likely to impair materially the ability of the Servicer
to
perform under the
terms
of this Agreement.
(h)
No
Consent Required.
No
consent, approval, authorization or order of any court
or
governmental agency or body is required for the execution, delivery and
performance by the
Servicer of or compliance by the Servicer with this Agreement, or the servicing
of the Mortgage
Loans as evidenced by the consummation of the transactions contemplated
by this
Agreement,
or if required, such approval has been obtained prior to the date
hereof.
(i)
No
Untrue Information.
No
statement, report or other document relating to
the
Servicer furnished or to be furnished by the Servicer pursuant to this
Agreement
or in connection
with the transactions contemplated hereby contains any untrue statement
of
material fact
or
omits to state a material fact necessary to make the statements contained
therein not misleading.
Section
9.02 Representations
and Warranties of the Owner.
As of
the date hereof
and on each date on which a Mortgage Loan Package becomes subject to the
terms
of this Agreement,
the Owner warrants and represents to, and covenants and agrees with, the
Servicer as follows:
(a) Organization
and Good Standing; Licensing.
The
Owner is a New York limited
partnership duly organized, validly existing and has the power and authority
to
own its assets
and to transact the business in which it is currently engaged.
(b) Authorization;
Binding Obligations.
The
Owner has the power and authority
to make, execute, deliver and perform this Agreement, and perform all of
the
transactions
contemplated to be performed by it under this Agreement, and has taken
all
necessary
action to authorize the execution, delivery and performance of this Agreement.
When executed and delivered, this Agreement will constitute the legal,
valid and
binding obligation of the
Owner
enforceable in accordance with its terms, except as enforcement may be
limited
by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights
generally and
by
the availability of equitable remedies.
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(c) No
Consent Required.
The
Owner is not required to obtain the consent of any
other
party or any consent, license, approval or authorization from, or registration
or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery,
performance, validity or enforceability of this Agreement, except such
as have
been obtained
or made or as to which the failure to obtain or make will not materially
adversely affect the ability of the Owner to perform all obligations
hereunder.
(d) No
Violations.
The
execution, delivery and performance of this Agreement
by the Owner will not violate any provision of any existing law or regulation
or
any order
or
decree of any court applicable to the Owner, except for violations that
will not
adversely affect
the Owner’s ability to perform its obligations under this Agreement or the
certificate of incorporation
of the Owner, or constitute a material breach of any mortgage, indenture,
contract or
other
agreement to which the Owner is a party or by which the Owner may be
bound.
(e) Litigation.
No
litigation or administrative proceeding of or before any court, tribunal
or
governmental body is currently pending or to the knowledge of the Owner
threatened, against the Owner or with respect to this Agreement, which
if
adversely determined would have a material adverse effect on the transactions
contemplated by this Agreement.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
The
following shall constitute an Event of Default
under this Agreement on the part of the Servicer:
(a) any
failure by the Servicer to remit to the Owner any payment required to
be
made
under the terms of this Agreement which continues unremedied for a period
of two
(2)
Business Days after the date upon which notice of such failure is given
to the
Servicer, requiring
the same to be remedied, shall have been given to the Servicer by the Owner;
or
(b) the
failure by the Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Servicer set
forth
in this Agreement
or in the Custodial Agreement which continues unremedied for a period of
30 days
after
the
date on which notice of such failure, requiring the same to be remedied,
shall
have been given
to
the Servicer by the Owner (the date of delivery of such notice, the “Notice
Date”);
provided,
however, that
in
the case of a failure that cannot be cured within thirty (30) days after
the
Notice Date, the cure period may be extended if the Servicer can demonstrate
to
the reasonable
satisfaction of the Owner that the failure can be cured and the Servicer
is
diligently pursuing
remedial action; or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for the appointment of a conservator or receiver or liquidator in any
insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have
been entered against the Servicer and such
decree or order shall have remained in force undischarged or unstayed for
a
period of 60
days;
or
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(d) the
Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities
or similar proceedings of or relating to the Servicer or of or relating
to all
or substantially
all of its property; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(f) the
Servicer fails to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located
for more than thirty (30) days after receiving notice from any Person thereof;
or
(g) Any
reduction, withdrawal or qualification of the servicing credit of the
Servicer
by any Rating Agency which results in the inability of the Servicer to
act as a
primary or special servicer for any mortgage-backed or asset-backed transaction
rated or to be rated by any
such
Rating Agency; or
(h)
the
Servicer attempts to assign its right to servicing compensation hereunder
or the Servicer attempts, without the consent of the Owner, to sell or
otherwise
dispose
of all or substantially all of its property or assets or to assign this
Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof in a manner
not permitted under this Agreement.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition
to whatsoever rights the Owner may have at law or equity to damages, including
injunctive
relief and specific performance, the Owner, by notice in writing to the
Servicer, may terminate
without compensation all the rights and obligations of the Servicer under
this
Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon
receipt by the Servicer of such written notice, all authority and power
of the
Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
6.02.
Upon written request from
the
Owner, the Servicer shall prepare, execute and deliver any and all documents
and
other instruments, place in such successor’s possession all Mortgage Files to
the extent initially provided
to the Servicer, and do or accomplish all other acts or things necessary
or
appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement
or assignment of the Mortgage Loans and related documents, or otherwise,
at the
Servicer’s
sole expense or as otherwise provided under Accepted Servicing Practices.
The
Servicer
agrees to cooperate with the Owner and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder, including,
without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the
time
be credited by the
Servicer to the Custodial Account or Escrow Account or thereafter received
with
respect to the
Mortgage Loans.
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Section
10.02 Waiver
of Defaults.
By a
written notice, the Owner may waive any
default by the Servicer in the performance of its obligations hereunder
and its
consequences. Upon
any
waiver of a past default, such default shall cease to exist, and any
Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Notices.
All
notices, requests, demands and other communications which
are
required or permitted to be given under this Agreement shall be in writing
and
shall be deemed to have been duly given upon the delivery or mailing
thereof, as
the case may be, sent by registered or certified mail, return receipt
requested:
(a)
If
to
Owner to:
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx
Facsimile
Number: (000)000-0000
(b)
If
to
Servicer to:
Avelo
Mortgage, L.L.C.
000
X.
Xxx Xxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention:
President and General Counsel
Facsimile
Number: (000) 000-0000 / (000) 000-0000
Section
11.02 Waivers.
Either
the Servicer or Owner may upon consent of all parties,
by written notice to the others:
(a) Waive
compliance with any of the terms, conditions or covenants required to
be
complied with by the others hereunder; and
(b) Waive
or
modify performance of any of the obligations of the others hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement
shall
not
operate or be construed as a waiver of any other subsequent breach.
Section
11.03 [Reserved].
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Section
11.04 Entire
Agreement; Amendment.
This
Agreement, including all documents
and exhibits incorporated by reference herein, constitutes the entire
agreement
between
the parties with respect to servicing of the Mortgage Loans. This Agreement
may
be amended
and any provision hereof waived, but, only in writing signed by the party
against whom such enforcement is sought.
Section
11.05 Execution;
Binding Effect.
This
Agreement may be executed in one
or
more counterparts and by the different parties hereto on separate counterparts,
each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute
one and the same agreement. Subject to Section 8.03, this Agreement shall
inure
to the
benefit of and be binding upon the Servicer and the Owner and their respective
successors and
assigns.
Section
11.06 Headings.
Headings of the Articles and Sections in this Agreement
are for reference purposes only and shall not be deemed to have any substantive
effect.
Section
11.07 Applicable
Law.
This
Agreement shall be construed in accordance with
the
laws of the State of New York.
Section
11.08 Relationship
of Parties.
Nothing
herein contained shall be deemed or
construed to create a partnership or joint venture between the parties.
The
duties and responsibilities
of the Servicer shall be rendered by them as independent contractors
and not as
an agent of Owner. The Servicer shall have full control of all of its
acts,
doings, proceedings, relating
to or requisite in connection with the discharge of its duties and
responsibilities under this
Agreement.
Section
11.09 Severability
of Provisions.
If any
one or more of the covenants, agreements,
provisions or terms of this Agreement shall be held invalid for any reason
whatsoever,
then such covenants, agreements, provisions or terms shall be deemed
severable
from
the
remaining covenants, agreements, provisions or terms of this Agreement
and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
11.10 General
Interpretive Principles.
For
purposes of this Agreement, except
as
otherwise expressly provided or unless the context otherwise
requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in
this
Agreement and include the plural as well as the singular, and the use
of any
gender herein shall
be
deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to
them
in accordance with generally accepted accounting principles;
(c) references
herein to "Articles," "Sections," "Subsections," "Paragraphs," and
other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
-41-
(d) reference
to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and
this
rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
"herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular provision;
and
(f) the
term "include" or "including" shall mean without
limitation by reason of
enumeration.
Section
11.11 Reproduction
of Documents.
This
Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and modifications
which may
hereafter be executed, (b) documents received by any party at the closing,
and
(c) financial statements,
certificates and other information previously or hereafter furnished,
may be
reproduced
by any photographic, photostatic, microfilm, micro-card, miniature photographic
or other
similar process. The parties agree that any such reproduction shall be
admissible in evidence
as the original itself in any judicial or administrative proceeding,
whether or
not the original
is in existence and whether or not such reproduction was made by a party
in the
regular course
of
business, and that any enlargement, facsimile or further reproduction
of such
reproduction
shall likewise be admissible in evidence.
Section
11.12 Further
Agreements.
The
Servicer and the Owner each agree to execute
and deliver to the other such reasonable and appropriate additional documents,
instruments
or agreements as may be necessary or appropriate to effectuate the purposes
of
this Agreement.
Section
11.13 No
Solicitation.
From
and after the related Transfer Date, the Servicer
agrees that it will not take any action or cause any action to be taken
by any
of its agents or
affiliates, or by any independent contractors on the Servicer's behalf,
to
personally, by telephone
or mail, solicit the Mortgagor under any Mortgage Loan for any purpose
whatsoever, including
to refinance a Mortgage Loan, in whole or in part, without the prior
written
consent of the
Owner. It is understood and agreed that all rights and benefits relating
to the
solicitation of any Mortgagors and the attendant rights, title and interest
in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Owner
pursuant
hereto on the related Transfer Date and the Servicer shall take no action
to
undermine
these rights and benefits. Notwithstanding the foregoing, it is understood
and
agreed that promotions undertaken by the Servicer or any affiliate of
the
Servicer which are directed to the
general public at large, including, without limitation, mass mailing,
internet
and e-mail solicitations, based in all instances, on commercially acquired
mailing lists (which may not be targeted
at the Mortgagors) and newspaper, radio and television advertisements
shall not
constitute
solicitation under this Section 29.
Section
11.14 Waiver
of Trial by Jury.
THE
SERVICER AND THE OWNER EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section
11.15 Submission
To Jurisdiction; Waivers.
The
Servicer hereby irrevocably
and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION
OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION
AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF,
TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF
THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK,
AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY
BE
BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED
BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION
OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF
BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS
ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH
THE
OWNER SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT
TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
Section
11.16 Confidential
Information.
The
Servicer and Owner understand and agree
that this Agreement, any other agreements executed in connection with
the sale
contemplated
hereunder, any agreements executed in connection with any Reconstitution,
and
any
offering circulars or other disclosure documents produced in connection
with any
Reconstitution
are confidential and proprietary to the Owner or Servicer, and the
Servicer and
Owner agree to hold such documents confidential and not to divulge
such
documents to anyone except
(a) to the extent required by law or judicial order or to enforce its
rights or
remedies under this
Agreement, (b) to the extent such information enters into the public
domain
other than through
the wrongful act of the Servicer or the Owner, as the case may be,
(c) as is
necessary in working
with legal counsel, rating agencies, auditors, agents, taxing authorities
or
other governmental
agencies (d) the federal income tax treatment of the transactions hereunder,
any
fact
relevant to understanding the federal tax treatment of the transactions
hereunder, and all materials of any kind (including opinions or other
tax
analyses) relating to such federal income tax treatment, or (e) to
their
respective Affiliates (so long as such Affiliates agree to keep such
information
confidential as if such Affiliate were bound to the same extent the
parties to
this Agreement
are bound by this Section 11.16); provided
that
the
Servicer may not disclose the name
of
or identifying information with respect to Owner or any pricing terms
or other
nonpublic
business or financial information that is unrelated to the purported
or claimed
federal income
tax treatment of the transactions hereunder and is not relevant to
understanding
the purported
or claimed federal income tax treatment of the transactions hereunder.
Moreover,
the Servicer
understands and agrees that this Agreement, any other agreements executed
in
connection
with the sale contemplated hereunder, any agreements executed in connection
with
the
securitization of the Mortgage Loans, and any offering circulars or
other
disclosure documents
produced in connection with such securitization are confidential and
proprietary
to the
Owner, and the Servicer agrees to hold such documents confidential
and not to
divulge such documents
to anyone except (a) to the extent required by law or judicial order
or to
enforce its rights
or
remedies under this letter agreement or the Agreements, (b) to the
extent such
information
enters into the public domain other than through the wrongful act of
the
Servicer (c) as
is
necessary in working with legal counsel, auditors, agents, rating agencies,
taxing authorities or
other
governmental agencies, or (d) to their respective Affiliates (so long
as such
Affiliates agree
to
keep such information confidential as if such Affiliate were bound
to the same
extent the parties
to this Agreement are bound by this Section 11.16). The rights and
obligations
set forth in
this
paragraph shall survive the related Transfer Date and shall not merge
into the
closing documents
but shall be independently enforceable by the parties hereto.
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ARTICLE
XII
COMPLIANCE
WITH REGULATION AB
Section
12.01 Intent
of the Parties; Reasonableness.
The
Owner and the Servicer acknowledge
and agree that the purpose of Article XII of this Agreement is to facilitate
compliance
by the Owner and any Depositor with the provisions of Regulation AB
and related
rules
and
regulations of the Commission. Although Regulation AB is applicable
by its terms
only to offerings of asset-backed securities that are registered under
the
Securities Act, the Servicer
acknowledges that investors in privately offered securities may require
that the
Owner or any Depositor provide comparable disclosure in unregistered
offerings.
References in this Agreement to compliance with Regulation AB include
provision
of comparable disclosure in private
offerings.
Neither
the Owner nor any Depositor shall exercise its right to request delivery
of
information
or other performance under these provisions other than in good faith,
or for
purposes other
than compliance with the Securities Act, the Exchange Act and the rules
and
regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that
required under the Securities Act). The Servicer acknowledges that
interpretations of the requirements
of Regulation AB may change over time, whether due to interpretive
guidance
provided by the Commission or its staff, consensus among participants
in the
asset-backed securities
markets, advice of counsel, or otherwise, and agrees to comply with
requests
made by the
Owner
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB.
In
connection with any Securitization Transaction,
the Servicer shall cooperate fully with the Owner to deliver to the
Owner
(including any
of
its assignees or designees) and any Depositor, any and all statements,
reports,
certifications,
records and any other information necessary in the good faith determination
of
the Owner
or
any Depositor to permit the Owner or such Depositor to comply with
the
provisions of Regulation
AB, together with such disclosures relating to the Servicer, any Subservicer
and
the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably
believed
by the Owner or any
Depositor to be necessary in order to effect such compliance.
-44-
The
Owner
(including any of its assignees or designees) shall cooperate with
the
Servicer
by providing timely notice of requests for information under these
provisions
and by reasonably limiting such requests to information required, in
the Owner's
reasonable judgment, to
comply
with Regulation AB.
Section
12.02 Additional
Representations and Warranties of the Servicer.
(a) The
Servicer shall be deemed to represent to the Owner and to any Depositor,
as of the date on which information is first provided to the Owner
or any
Depositor under
Section 12.03 that, except as disclosed in writing to the Owner
or such
Depositor prior to such
date: (i) the Servicer is not aware and has not received notice
that any
default, early amortization
or other performance triggering event has occurred as to any other
securitization due
to
any act or failure to act of the Servicer; (ii) the Servicer has
not been
terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default
or to application
of a servicing performance test or trigger; (iii) no material noncompliance
with
the applicable
servicing criteria with respect to other securitizations of residential
mortgage
loans involving
the Servicer as servicer has been disclosed or reported by the
Servicer; (iv) no
material changes
to the Servicer's policies or procedures with respect to the servicing
function
it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a
type similar
to the Mortgage Loans have occurred during the three-year period
immediately
preceding the
related Securitization Transaction; (v) there are no aspects of
the Servicer's
financial condition
that could have a material adverse effect on the performance by
the Servicer of
its servicing
obligations under this Agreement or any Reconstitution Agreement;
(vi) there are
no material
legal or governmental proceedings pending (or known to be contemplated)
against
the Servicer
or any Subservicer; and (vii) there are no affiliations, relationships
or
transactions relating
to the Servicer or any Subservicer with respect to any Securitization
Transaction and any party
thereto identified by the related Depositor of a type described
in Item 1119 of
Regulation AB.
(b) If
so
requested by the Owner or any Depositor on any date following the
date
on
which information is first provided to the Owner or any Depositor
under Section
12.03, the
Servicer shall, within five Business Days following such request,
confirm in
writing the accuracy
of the representations and warranties set forth in paragraph (a)
of this Section
or, if any such
representation and warranty is not accurate as of the date of such
request,
provide reasonably
adequate disclosure of the pertinent facts, in writing, to the
requesting
party.
Section
12.03 Information
to Be Provided by the Servicer.
In
connection with any
Securitization Transaction the Servicer shall (i) within five Business
Days
following request by
the
Owner or any Depositor, provide to the Owner and such Depositor (or
cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Owner
and
such Depositor, the information and materials specified in paragraphs
(a), (c)
and (f) of
this
Section, and (ii) as promptly as practicable following notice to
or discovery by
the Servicer,
provide to the Owner and any Depositor (in writing and in form and
substance
reasonably
satisfactory to the Owner and such Depositor) the information specified
in
paragraph (d)
of
this Section.
-45-
(a) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding each Subservicer, as is requested for the purpose
of
compliance with Items
1103(a)(1), 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(A) [Reserved];
(B) [Reserved];
(C) a
description of any material legal or governmental proceedings pending
(or known to be contemplated) against the Servicer and each Subservicer;
and
(D) a
description of any affiliation or relationship between the Servicer,
each Subservicer and any of the following parties to a Securittzation
Transaction, as such parties are identified to the Servicer by the Owner
or any
Depositor
in writing in advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) [Reserved].
(c) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans,
and each
Subservicer
(each of the Servicer and each Subservicer, for purposes of this paragraph,
a
"Transaction
Servicer"),
as is
requested for the purpose of compliance with Item 1108 of Regulation
AB. Such information shall include, at a minimum:
(A)
the
Transaction Servicer's form of organization;
-46-
(B) a
description of how long the Transaction Servicer has been servicing
residential mortgage loans; a general discussion of the Transaction Servicer's
experience in servicing assets of any type as well as a more detailed
discussion
of the Transaction Servicer's experience in, and procedures for, the
servicing
function it will perform under this Agreement and any Reconstitution
Agreements;
information regarding the size, composition and growth of the Transaction
Servicer's portfolio of residential mortgage loans of a type similar
to
the
Mortgage Loans and information on factors related to the Transaction
Servicer
that
may
be material, in the good faith judgment of the Owner or any Depositor,
to
any
analysis of the servicing of the Mortgage Loans or the related asset-backed
securities,
as applicable, including, without limitation:
| (1) |
whether
any prior securitizations of mortgage loans of a type similar
to the Mortgage Loans involving the Transaction Servicer have
defaulted or experienced an early amortization or other performance
triggering event because of servicing during the three-year
period immediately preceding the related Securitization Transaction;
|
| (2) | the extent of outsourcing the Transaction Servicer utilizes; |
| (3) |
whether
there has been previous disclosure of material noncompliance
with the applicable servicing criteria with respect to
other securitizations of residential mortgage loans involving
the
Transaction
Servicer as a servicer during the three-year period immediately
preceding the related Securitization
Transaction;
|
| (4) |
whether
the Transaction Servicer has been terminated as servicer in
a residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; and
|
| (5) |
such
other information as the Owner or any Depositor may reasonably
request for
the purpose of compliance with Item 1108(b)(2)
of Regulation AB;
|
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Transaction Servicer's
policies or procedures with respect to the servicing function it will
perform
under this Agreement for mortgage loans of a type similar to the Mortgage
Loans;
(D) information
regarding the Transaction Servicer's financial condition,
to the extent that there is a material risk that an adverse financial
event or
circumstance involving the Transaction Servicer could have a material
adverse
effect on the performance by the Transaction Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement;
-47-
(E) information
regarding advances made by the Transaction Servicer on
the
Mortgage Loans and the Transaction Servicer's overall servicing portfolio
of
residential mortgage loans for the three-year period immediately preceding
the
related
Securitization Transaction, which may be limited to a statement by an
authorized
officer of the Transaction Servicer to the effect that the Transaction
Servicer
has made all advances required to be made on residential mortgage loans
serviced
by it during such period, or, if such statement would not be accurate,
information
regarding the percentage and type of advances not made as required, and
the
reasons for such failure to advance;
(F) a
description of the Transaction Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans
of
a similar type as the Mortgage Loans;
(G) a
description of the Transaction Servicer's processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H)
information as to how the Transaction Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices
with respect to delinquency and loss experience.
(d) If
so
requested by the Owner or any Depositor for the purpose of satisfying
its reporting obligation under the Exchange Act with respect to any class
of
asset-backed
securities, the Servicer shall (or shall cause each Subservicer to) (i)
notify
the Owner and any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Servicer or any Subservicer and (B) any affiliations
or
relationships that develop following
the closing date of a Securitization Transaction between the Servicer
or any
Subservicer
and any of the parties specified in clause (D) of paragraph (a) of this
Section
(and any
other
parties identified in writing by the requesting party) with respect to
such
Securitization Transaction, and (ii) provide to the Owner and any Depositor
a
description of such proceedings, affiliations
or relationships.
(e) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or subservicer under this Agreement or any Reconstitution Agreement by
any
Person (i) into
which the Servicer or such Subservicer may be merged or consolidated,
or (ii)
which may be appointed
as a successor to the Servicer or any Subservicer, the Servicer shall
provide to
the Owner
and
any Depositor, at least 15 calendar days prior to the effective date
of such
succession or
appointment, (x) written notice to the Owner and any Depositor of such
succession or appointment
and (y) in writing and in form and substance reasonably satisfactory
to the
Owner and
such
Depositor, all information reasonably requested by the Owner or any Depositor
in
order to
comply
with its reporting obligation under Item 6.02 of Form 8-K with respect
to any
class of asset-backed
securities.
(f) In
addition to such information as the Servicer, as servicer, is obligated
to
provide
pursuant to other provisions of this Agreement, if so requested by the
Owner or
any Depositor,
the Servicer shall provide such information regarding the performance
or
servicing of the
Mortgage Loans as is reasonably required by the Owner or any Depositor
to
facilitate preparation
of distribution reports in accordance with Item 1121 of Regulation AB
and to
permit the
Owner
or such Depositor to comply with the provisions of Regulation AB relating
to
Static Pool Information regarding the performance of the Mortgage Loans
on the
basis of the Owner's or
such
Depositor's reasonable, good faith interpretation of the requirements
of Item
1105(a)(1)(3)
of
Regulation AB (including without limitation as to the format and content
of such
Static Pool Information). Such information shall be provided concurrently
with
the monthly reports otherwise required to be delivered by the Servicer
under
this Agreement, commencing with the first
such report due in connection with the applicable Securitization
Transaction.
-48-
(g)
The
Servicer shall provide to each originator of a Mortgage Loan (or if such
Mortgage Loan was not sold to Owner by the originator, the seller of
such
Mortgage Loan) (the "Static
Pool Party")
information with respect to each Mortgage Loan from and after the date
Servicer
commences servicing such Mortgage Loan necessary for such Static Pool
Party to
comply
with its obligations under Regulation AB, including, without limitation,
providing to the Static
Pool Party static pool information, as set forth in Item 1105(a)(2) and
(3) of
Regulation AB.
(h)
Promptly following notice or discovery of a material error in the information
provided pursuant to the immediately preceding paragraph (including an
omission
to include
therein information required to be provided pursuant to such paragraph),
the
Servicer shall
provide corrected static pool information to the Owner in the same format
in
which static pool
information was previously provided to such party by the Servicer.
Section
12.04 Servicer
Compliance Statement.
On or
before March 1 of each calendar
year, commencing in 2007, the Servicer shall deliver to the Owner and
any
Depositor a statement
of compliance addressed to the Owner and such Depositor and signed by
an
authorized officer
of the Servicer, to the effect that (i) a review of the Servicer's
activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this
Agreement and any applicable Reconstitution Agreement during such period
has
been made under
such officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations
under
this Agreement and any applicable Reconstitution Agreement in all material
respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation
in any
material respect,
specifically identifying each such failure known to such officer and
the nature
and the status
thereof.
Section
12.05 Report
on Assessment of Compliance and Attestation.
(a)
On or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i)
deliver to the Owner and any Depositor a report (in form and substance
reasonably satisfactory to the Owner and such Depositor) regarding the
Servicer's assessment
of compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange
Act and
Item 1122
of
Regulation AB. Such report shall be addressed to the Owner and such Depositor
and
signed by an authorized officer of the Servicer, and shall address each
of the
Servicing
Criteria specified on a certification substantially in the form of Exhibit
7
hereto delivered to the Owner concurrently with the execution of this
Agreement;
-49-
(ii)
deliver to the Owner and any Depositor a report of a registered public
accounting
firm reasonably acceptable to the Owner and such Depositor that attests
to,
and
reports on, the assessment of compliance made by the Servicer and delivered
pursuant
to the preceding paragraph. Such attestation shall be in accordance with
Rules
l-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii)
cause each Subservicer, and each Subcontractor determined by the Company
pursuant to Section 12.06(b) to be "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, to deliver to the Owner
and
any Depositor
an assessment of compliance and accountants' attestation as and when
provided
in paragraphs (a) and (b) of this Section; and
(iv)
if
requested by the Owner or any Depositor not later than February 1 of
the
calendar year in which such certification is to be delivered, deliver
to the
Owner, any Depositor
and any other Person that will be responsible for signing the certification
(a
"Sarbanes
Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf
of an
asset-backed
issuer with respect to a Securitization Transaction a certification in
the form
attached
hereto as Exhibit 6.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above
may
rely
on
the certification provided by the Servicer pursuant to such clause in
signing a
Sarbanes Certification and filing such with the Commission. Neither the
Owner
nor any Depositor will request
delivery of a certification under clause (a)(iv) above, unless a Depositor
is
required under the
Exchange Act to file an annual report on Form 10-K with respect to an
issuing
entity whose asset
pool includes Mortgage Loans.
(b)
Each
assessment of compliance provided by a Subservicer pursuant to Section
12.05(a)(i) shall address each of the Servicing Criteria specified on
a
certification substantially
in the form of Exhibit 7 hereto delivered to the Owner concurrently with
the
execution
of this Agreement or, in the case of a Subservicer subsequently appointed
as
such, on or
prior
to the date of such appointment. An assessment of compliance provided
by a
Subcontractor
pursuant to Section 12.05(a)(iii) need not address any elements of the
Servicing
Criteria
other than those specified by the Servicer pursuant to Section
12.06.
Section
12.06 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire
or
otherwise utilize the services of any Subservicer to fulfill any of the
obligations of the Servicer
as servicer under this Agreement or any Reconstitution Agreement unless
the
Servicer complies
with the provisions of paragraph (a) of this Section. The Servicer shall
not
hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or
otherwise utilize the services of any Subcontractor, to fulfill any of
the
obligations of the Servicer
as servicer under this Agreement or any Reconstitution Agreement unless
the
Servicer complies
with the provisions of paragraph (b) of this Section.
-50-
(a) It
shall
not be necessary for the Servicer to seek the consent of the Owner or
any
Depositor to the utilization of any Subservicer. The Servicer shall cause
any
Subservicer used
by
the Servicer (or by any Subservicer) for the benefit of the Owner and
any
Depositor to comply
with the provisions of this Section and with Sections 12.02, 12.03(c)
and (e),
12.04, 12.05
and
12.07 of this Agreement to the same extent as if such Subservicer were
the
Servicer, and
to
provide the information required with respect to such Subservicer under
Section
12.03(d) of
this
Agreement. The Servicer shall be responsible for obtaining from each
Subservicer
and delivering
to the Owner and any Depositor any servicer compliance statement required
to be
delivered
by such Subservicer under Section 12.04, any assessment of compliance
and
attestation required
to be delivered by such Subservicer under Section 12.05 and any certification
required to
be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section
12.05 as and when required to be delivered.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Owner or
any
Depositor to the utilization of any Subcontractor. The Servicer shall
promptly
upon request
provide to the Owner and any Depositor (or any designee of the Depositor,
such
as a master
servicer or administrator) a written description (in form and substance
satisfactory to the Owner
and
such Depositor) of the role and function of each Subcontractor utilized
by the
Servicer
or any Subservicer, specifying (i) the identity of each such Subcontractor,
(ii)
which (if any)
of
such Subcontractors are "participating in the servicing function" within
the
meaning of Item
1122
of Regulation AB, and (iii) which elements of the Servicing Criteria
will be
addressed in
assessments of compliance provided by each Subcontractor identified pursuant
to
clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be "participating
in the servicing function" within the meaning of Item 1122 of Regulation
AB, the
Servicer shall cause any such Subcontractor used by the Servicer (or
by any
Subservicer) for the benefit
of the Owner and any Depositor to comply with the provisions of Sections
12.05
and 12.07 of this Agreement to the same extent as if such Subcontractor
were the
Servicer. The Servicer
shall be responsible for obtaining from each Subcontractor and delivering
to the
Owner and
any
Depositor any assessment of compliance and attestation required to be
delivered
by such Subcontractor under Section 12.05, in each case as and when required
to
be delivered.
Section
12.07 Indemnification;
Remedies.
(a)
The
Servicer shall indemnify the Owner, each affiliate of the Owner, the
Depositor
and each of the following parties participating in a Securitization Transaction:
each sponsor
and issuing entity; each Person responsible for the preparation, execution
or
filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or
for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under
the Exchange
Act with respect to such Securitization Transaction; each broker dealer
acting
as underwriter, placement agent or initial purchaser, each Person who
controls
any of such parties or
the
Depositor (within the meaning of Section 15 of the Securities Act and
Section 20
of the Exchange
Act); each Static Pool Party and the respective present and former directors,
members, officers,
employees and agents of each of the foregoing and of the Depositor, and
snail
hold each of
them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and
expenses and related costs, judgments, and any other costs, fees and
expenses
that any of them
may
sustain arising out of or based upon:
-51-
(i)
(A)
any untrue statement of a material fact contained or alleged to be
contained
in any information, report, certification, accountants' letter or other
material
provided
under this Article XII by or on behalf of the Servicer, or provided
in written
or electronic
form under this Article XII by or on behalf of any Subservicer or Subcontractor
(collectively, the "Servicer
Information"),
or
(B) the omission or alleged omission to state in the Servicer Information
a
material fact required to be stated in the Servicer
Information or necessary in order to make the statements therein, in
the light
of the
circumstances under which they were made, not misleading; provided,
by
way of
clarification,
that clause (B) of this paragraph shall be construed solely by reference
to
the
Servicer Information and not to any other information communicated
in connection
with a sale or purchase of securities, without regard to whether the
Servicer
Information or
any
portion thereof is presented together with or separately from such
other
information;
(ii)
any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any information, report, certification, accountants' letter or other
material
when and as required under this Article XII, including any failure
by the
Servicer to identify pursuant to Section 12.06(b) any Subcontractor
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB; or
(iii)
any
breach by the Servicer of a representation or warranty set forth in
Section
12.02(a) or in a writing furnished pursuant to Section 12.02(b) and
made as of a
date
prior to the closing date of the related Securitization Transaction,
to the
extent that such
breach is not cured by such closing date, or any breach by the Servicer
of a
representation or warranty in a writing furnished pursuant to Section
12.02(b)
to the extent
made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this
Section,
the Servicer shall promptly reimburse the Owner, any Depositor, as
applicable,
and each Person
responsible for the preparation, execution or filing of any report
required to
be filed with the
Commission with respect to such Securitization Transaction, or for
execution of
a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act
with respect
to such Securitization Transaction, for all costs reasonably incurred
by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as
required by the Servicer, any Subservicer or any Subcontractor.
(b)
(i)
Any failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification, Static Pool Party static
pool
information, accountants' letter or other material when and as required
under
this Article XII, or any breach by
the
Servicer of a representation or warranty set forth in Section 12.02(a)
or in a
writing furnished pursuant to Section 12.02(g) and made as of a date
prior to
the closing date of the related
Securitization Transaction, to the extent that such breach is not cured
by such
closing date,
or
any breach by the Servicer of a representation or warranty in a writing
furnished pursuant
to Section 12.02(b) to the extent made as of a date subsequent to such
closing
date, shall,
except as provided in clause (ii) of this paragraph, immediately and
automatically, without notice
or
grace period, constitute an Event of Default with respect to the Servicer
under
this Agreement
and any applicable Reconstitution Agreement, and shall entitle the
Owner or
Depositor,
as applicable, in its sole discretion to terminate the rights and obligations
of
the Servicer as servicer under this Agreement and/or any applicable
Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement
to the contrary) of any compensation to the Servicer; provided
that
to
the extent that any
provision of this Agreement and/or any applicable Reconstitution Agreement
expressly provides
for the survival of certain rights or obligations following termination
of the
Servicer as servicer,
such provision shall be given effect.
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(ii)
Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any information, report, certification or accountants' letter when
and as
required under Section 12.04 or 12.05, including (except as provided
below) any
failure by the Servicer to identify pursuant to Section 12.06(b) any
Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, which continues
unremedied
for ten calendar days after the date on which such information, report,
certification
or accountants' letter was required to be delivered shall constitute
an Event
of
Default with respect to the Servicer under this Agreement and any applicable
Reconstitution
Agreement, and shall entitle the Owner or Depositor, as applicable,
in its
sole
discretion to terminate the rights and obligations of the Servicer
as servicer
under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding
anything in this Agreement to the contrary) of any compensation to
the
Servicer;
provided
that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights
or
obligations following termination of the Servicer as servicer, such
provision
shall be given
effect.
Neither
the Owner nor any Depositor shall be entitled to terminate the rights
and
obligations
of the Servicer pursuant to this subparagraph (b)(ii) if a failure
of the
Servicer to identify a Subcontractor "participating in the servicing
function"
within the meaning of Item
1122
of Regulation AB was attributable solely to the role or functions of
such
Subcontractor
with respect to mortgage loans other than the Mortgage Loans.
(iii)
The
Servicer shall promptly reimburse the Owner (or any designee of the
Owner,
such as a master servicer) and any Depositor, as applicable, for all
reasonable
expenses
incurred by the Owner (or such designee) or such Depositor, as such
are
incurred,
in connection with the termination of the Servicer as servicer and
the transfer
of servicing
of the Mortgage Loans to a successor servicer. The provisions of this
paragraph
shall not limit whatever rights the Owner or any Depositor may have
under
other
provisions of this Agreement and/or any applicable Reconstitution Agreement
or
otherwise,
whether in equity or at law, such as an action for damages, specific
performance
or injunctive relief.
-53-
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal
as
of the
date and year first above written.
|
XXXXXXX
XXXXX MORTGAGE COMPANY,
a
New York limited partnership
(the
Owner)
|
||
| |
|
|
| By: |
XXXXXXX
SACHS REAL ESTATE FUNDING
CORP.,
a
New York corporation,
its General Partner
|
|
| By: |  |
|
|
Name:
Xxxxxxxxxxx Xxxxxxx
|
||
|
Title:
VP
|
||
|
AVELO
MORTGAGE, L.L.C.
(the
Servicer)
|
||
| |
|
|
| By: | ||
|
Name: J. Xxxxxx Xxxxxxx |
||
| Title: President | ||
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal
as
of the
date and year first above written.
|
XXXXXXX
SACHS MORTGAGE COMPANY
(the
Owner)
|
||
| |
|
|
| By: | XXXXXXX XXXXX REAL ESTATE FUNDING CORP. | |
| By: | ||
|
Name: |
||
| Title: | ||
|
AVELO
MORTGAGE, L.L.C.
(the
Servicer)
|
||
| |
|
|
| By: |  |
|
|
Name:
J. Xxxxx Xxxxxxx
|
||
|
Title:
President
|
||
SCHEDULE
1
Minimum
fields required for the Monthly Remittance Report:
(a) investor;
(b) pool;
(c) loan
number;
(d) inventory
loan number;
(e) contractual
due date;
(f) interest
rate;
(g) servicing
fee rate;
(h) servicing
payment;
(i) principal
and interest payment;
(j) beginning
principal balance;
(k) ending
principal balance;
(1) noncash
principal adjustments;
(m) noncash
interest adjustments;
(n) prepayment
penalties;
(o) remittance
amount;
(p)
actual principal payments (actual principal payments that the borrower made
in
the reporting period);
(q)
actual interest payments (actual interest payments that the borrower made
in the
reporting period);
(r)
principal curtailments (principal curtailments applied to the loan in the
reporting period);
(s) payoff
date;
(t) borrower's
name;
(u) escrow
balance;
(v) corporate
balance;
(w) suspense
balance;
Sch.
1-1
SCHEDULE
2
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall include
each of
the following items:
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed
"Pay to the order of _________,
without
recourse" and signed in the name of the last endorsee
(the "Last
Endorsee")
by an
authorized officer. To the extent that there is no room on the
face
of the Mortgage Notes for endorsements, the endorsement may be contained
on an
allonge,
if state law so allows Custodian is so advised by the loan seller. If the
Mortgage Loan was
acquired loan seller in a merger, the endorsement must be by "[Last Endorsee],
successor by merger
to
[name of predecessor]." If the Mortgage Loan was acquired or originated by
the
Last Endorsee
while doing business under another name, the endorsement must be by "[Last
Endorsee],
formerly known as [previous name]";
(b) the
original of any guarantee executed in connection with the Mortgage Note;
(c) the
original Mortgage with evidence of recording thereon. If in connection
with any Mortgage Loan, the loan seller cannot deliver or cause to be delivered
the original
Mortgage with evidence of recording thereon on or prior to the related Transfer
Date because
of a delay caused by the public recording office where such Mortgage has
been
delivered
for recordation or because such Mortgage has been lost or because such public
recording
office retains the original recorded Mortgage, the loan seller shall deliver
or
cause to be delivered to the Custodian, a photocopy of such Mortgage, together
with (i) in the case of a delay
caused by the public recording office, an officer's certificate of the loan
seller (or certified by
the
title company, escrow agent, or closing attorney) stating that such Mortgage
has
been dispatched
to the appropriate public recording office for recordation and that the original
recorded
Mortgage or a copy of such Mortgage certified by such public recording office
to
be a true
and
complete copy of the original recorded Mortgage will be promptly delivered
to
the Custodian
upon receipt thereof by the loan seller; or (ii) in the case of a Mortgage
where
a public recording
office retains the original recorded Mortgage or in the case where a Mortgage
is
lost after recordation in a public recording office, a copy of such Mortgage
certified by such public recording
office to be a true and complete copy of the original recorded
Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements,
if any, with evidence of recording thereon;
(e) except
with respect to each MERS Designated Mortgage Loan, the original
Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable
for recording.
The Assignment of Mortgage must be duly recorded only if recordation is either
necessary
under applicable law or commonly required by private institutional mortgage
investors in
the
area where the Mortgaged Property is located or on direction of the Owner
as
provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall
be assigned
to the Owner. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan
was
acquired by the loan seller in a merger,
the Assignment of Mortgage must be made by "[Servicer], successor by merger
to
[name of
predecessor]." If the Mortgage Loan was acquired or originated by the loan
seller while doing business
under another name, the Assignment of Mortgage must be by "[Servicer], formerly
known
as
[previous name]";
Sch.
2-1
(f) the
originals of all intervening assignments of mortgage (if any) evidencing
a complete chain of assignment from the originator to the Last Endorsee (or
to
MERS with respect to each MERS Designated Mortgage Loan) with evidence of
recording thereon, or if any
such
intervening assignment has not been returned from the applicable recording
office or has
been
lost or if such public recording office retains the original recorded
assignments of mortgage,
the loan seller shall deliver or cause to be delivered to the Custodian,
a
photocopy of such
intervening assignment, together with (i) in the case of a delay caused by
the
public recording
office, an officers certificate of the loan seller (or certified by the title
company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched
to the appropriate public recording office for recordation and that such
original recorded
intervening assignment of mortgage or a copy of such intervening assignment
of
mortgage
certified by the appropriate public recording office to be a true and complete
copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian
upon receipt thereof by the loan seller; or (ii) in the case of an intervening
assignment where
a
public recording office retains the original recorded intervening assignment
or
in the case
where an intervening assignment is lost after recordation in a public recording
office, a copy of
such
intervening assignment certified by such public recording office to be a
true
and complete
copy of the original recorded intervening assignment;
(g) The
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder
or commitment
for title certified to be true and complete by the title insurance company;
and
(h)
security agreement, chattel mortgage or equivalent document executed in
connection
with the Mortgage.
In
the
event an officer's certificate of the loan seller is delivered to the Owner
because
of a delay caused by the public recording office in returning any recorded
document, the loan
seller shall deliver to the Owner, within 90 days of the related Transfer
Date,
an officer's certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has
not
been delivered to the Custodian due solely to a delay caused by the public
recording office,
(iii) state the amount of time generally required by the applicable recording
office to record
and return a document submitted for recordation, and (iv) specify the date
the
applicable recorded
document will be delivered to the Custodian. An extension of
the
date specified in (iv)
above may be requested from the Owner, which consent shall not be unreasonably
withheld.
Sch.
2-2
SCHEDULE
3
CONTENTS
OF EACH MORTGAGE FILE
(a) Copies
of
each Mortgage Loan Document.
(b) The
original hazard insurance policy and, if required by law, flood insurance
policy.
(c) Residential
loan application.
(d) Mortgage
Loan closing statement.
(e) Verification
of employment and income (except for Mortgage Loans originated
under a Limited Documentation Program).
(f) Verification
of acceptable evidence of source and amount of downpayment.
(g) Credit
report on the Mortgagor.
(h)
Residential appraisal report, if available.
(i)
Photograph of the Mortgaged Property.
(j)
Survey of the Mortgaged Property, if any.
(k)
Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e., map or plat,
restrictions, easements,
sewer agreements, home association declarations, etc.
(1)
All
required disclosure statements.
(m)
If
available, termite report, structural engineer's report, water potability
and
septic certification.
(n)
Sales
contract, if applicable.
(o)
Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date
of origination, insurance claim files, correspondence, current and historical
computerized
data files, and all other processing, underwriting and closing papers and
records which
are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
(p) Amortization
schedule, if applicable.
Sch.
3-1
EXHIBIT
1
FORM
OF
MONTHLY REMITTANCE ADVICE
Exh.
1-1
SCHEDULE
1 TO EXHIBIT 1
REPORTING
REQUIREMENTS
DATA
FILE
LAYOUT
|
Static
Information
|
||||||
|
Loan
Number
|
Loan
Number currently being used to service this loan.
|
123456789
|
||||
|
Prior
Loan Number
|
Prior
Loan Number (if any). If servicing has transferred this should contain
the
Loan Number used by the previous servicer.
|
987654321
|
||||
|
Custodian
File Number
|
Custodian
ID used to file documents. This can be the custodian's
only id or a category used to arrange documents into proper
pools.
|
1de457
|
||||
|
Custodian
Loan Number
|
Custodian
secondary ID used to file documents. Often this is used in conjunction
with Custodian File Number to uniquely identify
loans.
|
365wer5
|
||||
|
Owner
Loan Number
|
The
Loan number that Owner assigns to the loan
|
Leave
Blank
|
||||
|
Origination
Date
|
Origination
Date shown on loan documents.
|
12/25/2004
|
||||
|
Originator
|
The
name of the company that originated the loan
|
Xxxxx
Fargo
|
||||
|
Origination
Source
|
Broker,
etc.
|
Broker
|
||||
|
Loan
Purchase Date
|
The
date that Owner purchased the loan
|
11/25/2004
|
||||
|
HOEPA
Status
|
Y\N
|
|||||
|
Type
of Ownership
|
like
fee simple, lease-hold
|
Lease-Hold
|
||||
|
Documentation
Type
|
Full,
Alt, No Ration, None, XXXX, XXXX
|
Full
|
||||
|
Income
Verification Flag
|
Was
the Borrower's income verified or stated
|
Y
|
||||
|
Asset
Verification
|
Were
the Borrower's Assets verified
|
Y
|
||||
|
Employment
Verification
|
Was
the Borrower's employment verified
|
Y
|
||||
|
Flood
Insurance Indicator
|
Does
the property have flood insurance
|
Y
|
||||
|
Min
MERS
|
MERS
Certificate Number
|
Y
|
||||
|
Product
Type
|
Generic
category code used internally to describe loan type
|
6MO
|
||||
|
Product
Description
|
Generic
category description
|
6
month arm -10
|
||||
|
Interest
Calculation Method
|
The
basis on which interest is calculated. (arrears, 360, 365, advance,
etc)
|
30/360
|
||||
|
Draw
Term
|
The
term that the borrower can draw from the line of credit stated in
months
|
120
|
Exh.
1-2
|
FHA
Section of the Act
|
FHA
Section, if applicable
|
|||||
|
Balloon
Term
|
Number
of months to Balloon Date
|
180
|
||||
|
IO Term
|
Indicates
the term in months of the interest only period
|
24
|
||||
|
IO Flag
|
Indicates
if the loan is an interest only loan for a period of the loan
|
Y
|
||||
|
Section
32 Flag
|
Indicates
if the loan may violate predatory lending laws (Y/N)
|
Y
|
||||
|
Convertible
Flag
|
Indicates
that the borrower is allowed to convert an ARM mortgage
to a Fixed Rate mortgage
|
Y
|
||||
|
Assumable
Flag
|
Indicates
if loan is assumable
|
Y
|
||||
|
Balloon
Flag
|
Code/literal
to identify balloon loans. Example: Y, N.
|
Y
|
||||
|
Buydown
Flag
|
Indicates
if the loan has a buydown option (Y/N)
|
Y
|
||||
|
Daily
Simple Interest Flag
|
Flag
to identify loans where interest is due is calculated based
on the date that each payment is actually received.
|
Y
|
||||
|
Loan
Type
|
Code/literal
to identify the loan type. (Conventional [w/] PMI, Jumbo, FHA, VA,
etc)
|
Conventional
- PMI
|
||||
|
Property
Type
|
Code/literal
that identifies the type of property securing the loan.
(2 Family, PUD)
|
PUD
|
||||
|
Property
Address
|
Property
address, not billing address.
|
000
Xxxxxxx Xxxx
|
||||
|
Property
City
|
Property
city.
|
Toronto
|
||||
|
Property
State
|
Property
state.
|
NY
|
||||
|
Property
Zip
|
Property
zip.
|
10004
|
||||
|
Condo/PUD
Project Name
|
Name
of the development.
|
Xxxxx
Xxxxxxx
|
||||
|
Number
of Units
|
The
number of units for the property (1,2,3,4) (should correspond to
the
property type)
|
2
|
||||
|
Year-Built
|
Date
property was built
|
1978
|
||||
|
Lien
Position
|
Number
used to identify the lien position in effect at the time of
application. Example: 1, 2, 3, O (other)
|
1
|
||||
|
Occupancy
Type
|
Occupancy
status at time of application. (2nd home, owner occupied,
vacant, etc)
|
OO
|
||||
|
Convertible
Term
|
The
specified period at which a borrower can choose to exercise
convertible rights
|
24
|
||||
|
Conversion
Expiration Date
|
Expiration
date of conversion provisions
|
12/25/2006
|
||||
|
Conversion
Fee
|
Fee
for converting loan from ARM to Fixed
|
Exh.
1-3
|
Conversion
Formula
|
||||||
|
Convert
Lookback
|
The
period designated for lookback calculation stated in days.
|
45
|
||||
|
Convert
Index
|
Index
used for the conversion
|
|||||
|
Convert
Lifetime Cap Down
|
||||||
|
Convert
Lifetime Cap Up
|
||||||
|
Convert
Margin
|
||||||
|
Convert
Cap Down
|
||||||
|
Convert
Cap Up
|
||||||
|
Convert
Max PI CAP (Up)
|
||||||
|
Convert
Max PI CAP (Down)
|
||||||
|
PMI
Provider
|
Name
or code for company providing private mortgage insurance.
|
Radian
|
||||
|
PMI
Coverage Percentage
|
Percentage
of insurance provided by PMI agreement.
|
12
|
||||
|
PMI
Certificate ID
|
Unique
ID to identify PMI insurance certificate.
|
5829471
|
||||
|
Lender
Paid Insurance Flag
|
Indicates
if Lender pays PMI Insurance
|
Y
|
||||
|
Lender
Paid Insurance Fee
|
stated
in percent
|
0.25
|
||||
|
Original
Balance
|
Original
amount of loan granted to borrower. In the case of construction
loans this should be the full amount extended on which
the monthly payments are based.
|
250000.00
|
||||
|
Original
Senior Lien Amount
|
Amount
of senior lien outstanding when loan was originated.
|
0.00
|
||||
|
Original
Junior Lien Amount
|
Amount
of junior liens outstanding when loan was originated
|
32000.00
|
||||
|
Payment
Frequency
|
Monthly,
bi-weekly, etc.
|
monthly
|
||||
|
Original
Scheduled P&I
|
Original
Scheduled Principal and Interest payment
|
564.12
|
||||
|
Original
PITI
|
Original
Scheduled Principal, Interest, Tax and Insurance payment
|
725.12
|
||||
|
First
Payment Date
|
This
is the contractual date when the first payment was to be made.
|
2/1/2005
|
||||
|
Original
Maturity Date
|
This
is the contractual date when the last payment on the loan is scheduled
to
be made. For balloons it should be the balloon
date.
|
1/1/2020
|
Xxx.
0-0
|
Xxxxxxxx
Xxxx
|
The
number of months from First Payment Date to Original Maturity Date
inclusive.
|
180
|
||||
|
Original
Amortization Term
|
Original
Amortization Term of the loan in number of months. For
fully amortizing loans would be the same as Original Term.
For balloon loans this would exceed Original Term. For
I0 loans this would have no value.
|
360
|
||||
|
Original
Interest Rate
|
Original
contractual interest rate for loan. (provide all decimal places)
|
8.515
|
||||
|
Original
Loan To Value Ratio
|
Ratio
representing the Original Loan Balance to the Original Appraised
Value
|
75.69
|
||||
|
Original
Combined Loan To
Value Ratio
|
For
Junior liens, Ratio representing the sum of the Original Loan
Balance plus Original Senior Lien Amount to the Original Appraised
Value
|
85.23
|
||||
|
Original
Appraised Value
|
Appraised
value at time of application.
|
550562
|
||||
|
Original
Appraisal Date
|
Date
of the original Appraisal
|
12/1/2004
|
||||
|
Original
Appraisal Firm
|
Name
of the Appraisal firm
|
Union
Appraisals
|
||||
|
Appraisal
Form Type
|
Form
1040 U, 2005
|
|||||
|
Appraisal
Review Type
|
Desk
Top, Drive By
|
|||||
|
Original
Purchase Price
|
Price
paid for home.
|
360000
|
||||
|
Purchase
BPO
|
BPO
at the time of Purchase by Owner
|
580000
|
||||
|
Purchase
BPO Date
|
Date
of the Purchase BPO
|
12/1/2004
|
||||
|
Purpose
of Loan
|
Code/literal
used to identify the original purpose of the loan. (case-out
refi, refi, purchase, construction, etc)
|
Purchase
|
||||
|
Cash-out
Amount
|
The
Amount that the borrower removed from the loan
|
10000
|
||||
|
Prepayment
Flag
|
Code/Flag
to determine if loan was originated with a prepayment
penalty. (Y / N)
|
Y
|
||||
|
Prepayment
Penalty Type
|
Code/literal
to identify characteristics of penalty. Example: 6 MO
INT ON 80% XXXX, 5/4/3/2/1, 3%.
|
6
Months Interest on 80%
|
||||
|
Prepayment
Term
|
Original
number of months that penalty was imposed.
|
24
|
||||
|
Arm
Index Description
|
Code/literal
used to identify the specific underlying index that adjustable
rate loans will reset from. (6 Months Libor, 1 Yr CMT,
etc)
|
6ML
|
||||
|
Margin
|
The
spread above the index value that a new rate on adjustable
rate loans will be set to; subject to caps and rounding,
(stated in percent)
|
3.65
|
||||
|
ARM
Rounding Feature
|
Code/literal
used to identify the method to be used when computing
new rate on adjustable rate loans, (stated in percent)
|
0.125
|
Exh.
1-5
|
Lookback
Days
|
The
actual number of days prior to the Next Rate Reset Date that
the underlying index will be referenced for determining new
rate on adjustable rate loans. Examples: 45, 30, 0.
|
45
|
||||
|
First
Payment Reset Date
|
The
first date that any payment reset was/is scheduled to occur.
Typically is one month after First Rate Reset Date.
|
3/1/2007
|
||||
|
First
Rate Reset Date
|
The
first date that any rate reset was/is scheduled to occur. Typically
is one month prior to First Payment Reset Date.
|
2/1/2007
|
||||
|
Initial
Rate Reset Period
|
Number
of payments to be made prior to the first rate reset. For
a typical 5/1 ARM, this would contain the value 60.
|
60
|
||||
|
Rate
Reset Period
|
Number
of payments to be made between rate changes following the initial
rate
reset period. For a typical 5/1 ARM this would contain the value
12.
|
12
|
||||
|
Initial
Payment Reset Period
|
Number
of payments to be made prior to the first payment reset. For a
typical 5/1
ARM, this would contain the value 60. For non hybrid loans this
would
equal the Payment Reset Period.
|
60
|
||||
|
Payment
Reset Period
|
Number
of payments to be made between payment changes following
the Initial Payment Reset Period. For a typical 5/1 ARM this would
contain
the value 12.
|
12
|
||||
|
Initial
Rate Adjustment Cap
|
Maximum
rate change allowed on First Rate Reset Date.
|
3
|
||||
|
First
Cap Adjustment Down
|
0
|
|||||
|
Rate
Adjustment Cap
|
Maximum
rate increase allowed subsequent to First Rate Reset
Date.
|
1
|
||||
|
Periodic
Floor
|
Maximum
rate decrease allowed subsequent to First Rate Reset
Date.
|
0
|
||||
|
Lifetime
Caps
|
The
maximum amount the rate is allowed to increase by over the
life of the loan.
|
6
|
||||
|
Lifetime
Floor
|
The
minimum amount the rate is allowed to increase by over the
life of the loan.
|
0
|
||||
|
Max
Rate
|
The
absolute maximum rate allowed for the loan.
|
11.65
|
||||
|
Min
Rate
|
The
absolute minimum rate allowed for the loan.
|
3.65
|
||||
|
Negative
Amortization Flag
|
Code/literal
to identify loans where negative amortization is allowed.
Example: Y=neg am allowed, N=no neg am allowed.
|
Y
|
||||
|
Negam
Percent Cap
|
Maximum
percentage of original balance that a loan may negatively
amortize by. (25%, etc.)
|
25
|
Exh.
1-6
|
Payment
Cap
|
Periodic
Cap for monthly principal & interest payment increase.
Example 7.5%.
|
6.5
|
||||
|
Original
FICO score
|
Credit
bureau score obtained at application.
|
654
|
||||
|
Credit
Score Company
|
Experian
|
|||||
|
Original
Credit Grade
|
B+
|
|||||
|
Front
Debt To Income Ratio
|
Front
End Ratio at time of application. Mortgage debt to borrower
income.
|
56.23
|
||||
|
Debt
To Income Ratio
|
Back
End Ratio at time of application. Total debt to borrower income.
|
68.25
|
||||
|
Scheduled
Due Date
|
Scheduled
payment date sold to security
|
2/1/2005
|
||||
|
Borrower
Name Last Name
|
Borrower's
Last Name
|
Xxx
|
||||
|
Borrower
Name First Name
|
Borrower's
First Name
|
Xxx
|
||||
|
CoBorrower
Name Last Name
|
Co-Borrower's
Last Name
|
Xxx
|
||||
|
CoBorrower
Name First Name
|
Co-Borrower's
First Name
|
Xxxx
|
||||
|
Borrower
Social Security Number/TIN
|
Eleven
character ID. Example: 000-00-0000.
|
000-00-0000
|
||||
|
CoBorrower
Social Security
Number/TIN
|
Eleven
character ID. Example: 000-00-0000.
|
000-00-0000
|
||||
|
Self
Employment Flag
|
Y
|
|||||
|
Borrower
Age
|
52
|
|||||
|
Co-Age
|
56
|
|||||
|
Borrower
Race
|
||||||
|
Co-Race
|
||||||
|
Borrower
Gender
|
Male
|
|||||
|
Co-Gender
|
Female
|
|||||
|
Income
|
182564
|
|||||
|
Co-Income
|
256453
|
|||||
|
Co_credit
Score
|
841
|
|||||
|
Borrower
Ethnicity
|
||||||
|
Co-Ethnicity
|
||||||
|
First
Time Borrower Flag
|
N
|
|||||
|
Monthly
Updated
|
Exh.
1-7
|
Information
|
||||||
|
Investor
Number
|
This
is the servicer assigned number for reporting purposes.
|
691
|
||||
|
Investor
Category
|
This
is the servicer assigned category for reporting purposes.
|
2
|
||||
|
Servicing
Type
|
Indicates
whether the loan is serviced on an actual or scheduled
basis. (act/act, act/sched,sched/act,sched/sched)
|
(sched/sched)
|
||||
|
Senior
Lien Amount
|
Most
recently recorded senior lien amount.
|
0
|
||||
|
Current
Maturity Date
|
This
is the actual date when the last payment on the loan is scheduled
to be
made. For balloons it should be the balloon date.
For modified loans it should be the modified maturity date.
|
1/1/2020
|
||||
|
Current
Principal & Interest
Payment
|
Principal
& Interest in effect for currently outstanding payment.
|
562.41
|
||||
|
Current
Interest Rate
|
Interest
Rate in effect for currently outstanding payment.
|
8.55
|
||||
|
Current
Net Interest Rate
|
The
current rate exclusive of LPMI, servicing and other fees.
|
7.55
|
||||
|
Current
Rate Expenses
|
Current
Rate Expenses (LPMI and Servicing Fee Excluded)
|
0
|
||||
|
Remaining
Term
|
The
Remaining Term of the loan
|
179
|
||||
|
Next
Due Date
|
Date
next payment is due.
|
2/1/2005
|
||||
|
Interest
Paid To Date
|
Date
interest is paid to. Typically for 30/360 loans it is one month
prior to
Next Due Date.
|
1/1/2005
|
||||
|
Last
Payment Date
|
Date
last payment was made.
|
1/1/2005
|
||||
|
Days
Past Due
|
Number
of days loan is past due.
|
0
|
||||
|
Delinquency
Convention
|
Indicates
if ABS or MBS method for reporting delinquencies is
used.
|
MBS
|
||||
|
Status
of Loan
|
Code/literal
used to identify loan status. See Enumerations worksheet.
|
Foreclosure
|
||||
|
12
Month Pay String
|
12
character string representing the timing of payments received
on a rolling
12 month basis. String should begin with January and end with
December.
|
|||||
|
As
of Date
|
As
of Date of data being provided
|
|||||
|
Next
Payment Reset Date
|
The
next date that any payment reset is scheduled to occur. Typically
is one month after Next Rate Reset Date.
|
|||||
|
Next
Rate Reset Date
|
The
next date that any rate reset is scheduled to occur. Typically
is one month prior to Next Payment Reset Date.
|
|||||
|
Last
Modification Date
|
Date
that loan was last modified.
|
|||||
|
Last
Extension Date
|
Date
loan term was last extended.
|
|||||
|
Times
Extended
|
||||||
|
Total
Extension Months
|
Number
of months loan has been extended in total.
|
Xxx.
0-0
|
Xxxxxxxxxxx
Xxxxxx - X00
|
0
|
|||||
|
Xxxxxxxxxxx
Xxxxxx - T60
|
1
|
|||||
|
Delinquency
Status - T90
|
0
|
|||||
|
Delinquency
Status -T120
|
0
|
|||||
|
Restructured
Interest
|
Total
amount of restructured interest (modified loans)
|
|||||
|
Recent
Property Valuation
|
Most
recent appraised value or BPO value.
|
|||||
|
Recent
Property Valuation
Date
|
Date
of most recent valuation.
|
|||||
|
Valuation
Method
|
Identify
method used to obtain new valuation. See Enumerations
worksheet
|
|||||
|
Valuation
Firm
|
Name
of the Firm who appraised the property
|
|||||
|
Current
FICO
|
Current
FICO score.
|
|||||
|
FICO
Date
|
FICO
Date.
|
|||||
|
ARM
Flag
|
A
'Y'
or
'N' to indicate if a loan is an Adjustable rate mortgage
|
Y
|
|
Servicing
Information
|
||||||
|
Amortization
Term
|
The
remaining amortization term, in months
|
|||||
|
Forbearance
Payment
|
Amount
of payment under Forbearance plan
|
|||||
|
Servicing
Fee
|
The
fee rate to service the loan
|
|||||
|
Servicing
Fee Payment
|
The
actual service fee for the loan for the given month
|
|||||
|
Interest
Adjustment
|
Adjustments
made to a previous month's interest
|
|||||
|
Principal
Adjustment
|
Adjustments
made to a previous month's principal
|
|||||
|
Total
Monthly Payment Principal
|
Cash
applied to principal.
|
|||||
|
Total
Monthly Payment Interest
|
Cash
applied to interest.
|
|||||
|
Total
Monthly Payment Penalties / Fees
|
Cash
applied to fees.
|
|||||
|
Total
Monthly Escrow Payment
|
Cash
applied to escrow account.
|
|||||
|
Total
Monthly Prepayment
Amount
|
Total
amount borrower prepaid
|
|||||
|
Total
Prepayment Penalties
|
Prepayment
Penalty collected this month
|
|||||
|
Total
Monthly Payment
|
Total
cash received from borrower.
|
Exh.
1-9
|
Total
Remit Amount
|
Total
amount remitted for the individual loan
|
|||||
|
Current
PITI
|
Current
scheduled Principal, Interest, Tax and Insurance payment
|
|||||
|
Monthly
Escrow Advances
|
Net
escrow advances made or recovered by servicer. Positive
value denotes payments made by servicer.
|
|||||
|
Monthly
Corporate Advances
|
Net
corporate advances made or recovered by servicer. Positive
value denotes payments made by servicer.
|
|||||
|
Principal
Advance Balance
|
Total
outstanding principal advances made by servicer.
|
|||||
|
Interest
Advance Balance
|
Total
outstanding interest advances made by servicer.
|
|||||
|
Monthly
Principal Advances
|
Amount
of principal advanced in current month
|
|||||
|
Monthly
Interest Advances
|
Amount
of interest advanced in current month
|
|||||
|
Beginning
Actual Balance
|
Actual
balance at the beginning of the period. The is most likely
last periods ending balance carried forward
|
|||||
|
Current
Principal Balance
|
Ending
actual principal balance outstanding
|
|||||
|
Current
Balance Net Present
Value
|
The
net present value of the current balance
|
|||||
|
Beginning
Scheduled Balance
|
Beginning
scheduled loan balance. If the loan is serviced on a
scheduled balance basis
|
|||||
|
Ending
Scheduled Balance
|
Ending
scheduled loan balance. If the loan is serviced on a scheduled
balance basis
|
|||||
|
Escrow
Balance
|
Current
balance of escrow account (borrower's positive funds).
|
|||||
|
Escrow
Advance Balance
|
Total
outstanding escrow advance balance.
|
|||||
|
Recoverable
Corporate Advance
Balance
|
Corporate
advance balance where a + denotes a payment made
by the servicer
|
|||||
|
Non
Recoverable Corporate
Advance Balance
|
Balance
of Corporate Advances made that are not recoverable
from the borrower
|
|||||
|
Total
Corporate Advance Balance
|
Total
outstanding Corporate Advance Balance
|
|||||
|
Suspense
Account Balance
|
Total
suspense account balance
|
|||||
|
Accrued
Interest
|
Total
Accrued Interest on loan.
|
|||||
|
Stop
Advance Flag
|
Code
indicating loan has been placed in a stop advance status.
Example: Y=Stop Advance.
|
Exh.
1-10
|
Stop
Advance Recovered
|
Amount
of principal and interest advances recovered at stop date.
|
|||||
|
Stop
Advance Start Date
|
Date
loan was initially placed on a stop advance status.
|
|||||
|
Stop
Advance Reversal Date
|
Date
stop advance status was reversed.
|
|||||
|
Stop
Advance Reversal Amount
|
Amount
of advances reversed.
|
|||||
|
Rent
Collection
|
||||||
|
PI
Constant
|
The
Constant Principal and Interest rate the borrower would pay
based on their schedule
|
|||||
|
Combined
Loan to Value Ratio
|
||||||
|
Current
Loan to Value Ratio
|
||||||
|
Forced
Placed Insurance Flag
|
Code
indicating loan is on forced placed insurance.
|
|||||
|
Annual
Forced Placed Insurance
|
Amount
of forced placed policy.
|
|||||
|
Last
Contact Date
|
Date
of Servicer's last contact with the borrower.
|
|||||
|
Last
Attempt Date
|
Date
of the Servicer's last attempt to contact the borrower.
|
|||||
|
Bankruptcy
Flag
|
Flag
indicating loan is in bankruptcy.
|
|||||
|
Bankruptcy
Chapter
|
Chapter
of bankruptcy (7,11,12,13, OTH).
|
|||||
|
Bankruptcy
Start Date
|
Bankruptcy
filing date.
|
|||||
|
Bankruptcy
End Date
|
Dismissal/Discharge
date.
|
|||||
|
Bankruptcy
Post Petition Due
Date
|
Payment
due date of Bankruptcy payment plan. In essence the
new due date.
|
|||||
|
Motion
for Relief Request Date
|
Motion
for Relief Request Date.
|
|||||
|
Motion
for Relief Filing Date
|
0
|
|||||
|
Motion
for Relief Hearing Date
|
Motion
for Relief Hearing Date.
|
|||||
|
Motion
for Relief Granted Date
|
Motion
for Relief Granted Date.
|
|||||
|
Motion
for Relief Denied Date
|
Date
the motion was Denied (if applicable)
|
|||||
|
In
Demand Flag
|
Code
indicating demand letter has been sent.
|
|||||
|
In
Demand Start Date
|
Date
demand letter was sent.
|
Exh.
1-11
|
In
Demand End Date
|
Expiration
of demand letter.
|
|||||
|
Foreclosure
Estimated End Date
|
On
loans that are in Foreclosure the Servicers estimate of when
the FCL will be completed.
|
|||||
|
Foreclosure
Sale Date
|
Date
of actual foreclosure sale.
|
|||||
|
Foreclosure
Start Date
|
Date
of Referral to FC Attorney
|
|||||
|
Foreclosure
end date
|
Date
of recording of foreclosure deed.
|
|||||
|
First
Legal Date
|
Date
of first legal action taken on foreclosure.
|
|||||
|
Foreclosure
Resolution Flag
|
Indicates
if the loan has moved out of foreclosure (i.e.
Did
not
go to REO).
|
|||||
|
Foreclosure
Resolution Type
|
Method
used by the servicer to prevent the foreclosed loan from
moving into REO. See Enumerations worksheet.
|
|||||
|
Foreclosure
On Hold
|
Flag
indicating that the loan is in foreclosure but on hold.
|
|||||
|
Foreclosure
Hold Start Date
|
Date
indicating when the loan's foreclosure proceedings were put
on hold.
|
|||||
|
Bankruptcy
Cash Delays
|
Number
of days an active foreclosure has been in BK subsequent
to its initial foreclosure start date.
|
|||||
|
Forbearance
Cash Delays
|
Number
of days an active foreclosure has been in forbearance
subsequent to its initial foreclosure start date.
|
|||||
|
Forbearance
Flag
|
Y/N
|
|||||
|
Non
- Cash Delays
|
Number
of allowable days that a loan's foreclosure proceedings
have been on hold due to a non cash delay (i.e.
Title
problem...) [again as per Fannie or Xxxxxxx time line]
|
|||||
|
Forbearance
Start Date
|
Date
forbearance plan was initiated.
|
|||||
|
Forbearance
End Date
|
Date
forbearance plan scheduled to be complete.
|
|||||
|
Eviction
Start Date
|
Date
eviction flag placed on loan.
|
|||||
|
Eviction
End Date
|
Date
property is vacated.
|
|||||
|
REO
Start Date
|
Date
REO flag placed on loan (including any redemption periods).
|
|||||
|
REO
End Date
|
Date
property is sold.
|
|||||
|
REO
Sub Status
|
Status
while within REO. See Enumerations worksheet.
|
|||||
|
Not
Acquired Date
|
Date
that the REO enters "Not Acquired" sub status
|
|||||
|
Eviction
Date
|
Date
that the REO enters "Eviction" sub status
|
|||||
|
Listed
Date
|
Date
that the REO enters "Listed" sub status
|
|||||
|
Under
Contract Date
|
Date
that the REO enters "Under Contract"
sub
status
|
|||||
|
Estimated
Closing Date
|
Servicer
estimated closing date on loan
|
|||||
|
Days
In REO
|
Number
of Days from the REO becomes marketable to the As
of Date
|
Exh.
1-12
|
Estimated
Sales Price
|
Servicer
estimated REO Sates Price
|
|||||
|
Possession
Date
|
Date
when the servicer takes possession of the property. Date
we have full access to the property, eviction completed
|
|||||
|
Redemption
End Date
|
Legal
time period, determined by State, when borrower can redeem
their property. Property not available for sale until redemption
completed (no beginning date, just an end date)
|
|||||
|
Initial
Listing Price
|
First
listing price of property.
|
|||||
|
Initial
Listing Date
|
Date
of the first listing price of property
|
|||||
|
Current
List Price
|
Most
recent listing price of property.
|
|||||
|
Current
List Date
|
Date
of the most recent listing price of property.
|
|||||
|
Reason
For Default
|
Servicer
Code representing the Reason for Default. See Enumerations
worksheet.
|
|||||
|
Foreclosure
Indicator Flag
|
||||||
|
Termination
Information
|
||||||
|
Net
Interest at termination
|
Ending
accrued net interest outstanding before the loan was
liquidated/terminated
|
|||||
|
Gross
Interest at termination
|
Ending
accrued gross interest outstanding before the loan was
liquidated/terminated
|
|||||
|
Balance
at Termination
|
Actual
Principal balance at time of termination.
|
|||||
|
Gross
Total Proceeds
|
Gross
Total Proceeds.
|
|||||
|
Net
Total Proceeds
|
Gross
total proceeds less expenses.
|
|||||
|
Principal
Advanced
|
Total
of principal advanced at time of liquidation.
|
|||||
|
Interest
Advanced
|
Total
of interest advanced at time of liquidation.
|
|||||
|
Deferred
Interest
|
Amount
of deferred interest on the loan @ liquidation
|
|||||
|
Accrued
Servicing Fee Recovered
|
Servicing
fee recovered at time of liquidation.
|
|||||
|
Corporate
Advances Recovered
at Termination
|
The
amount of the Total Corporate Advance balance recovered
at termination
|
|||||
|
Escrow
Advances Recovered
at Termination
|
The
amount of the Total Escrow Advance balance recovered at
termination
|
|||||
|
Commission
|
The
broker commission amount on liquidation
|
|||||
|
Seller
Concession
|
The
dollar amt of seller concessions upon liquidation.
|
|||||
|
Taxes
|
Taxes
paid on liquidation
|
|||||
|
Repairs
|
Cost
of Repairs to property
|
Exh.
1-13
|
Water
and Sewer
|
Water
& Sewer costs
|
|||||
|
Expenses
Recovered at Termination
|
The
amount of the Total Expenses recovered at termination
|
|||||
|
Corporate
Advances at Termination
|
Corporate
advance balance at time of liquidation.
|
|||||
|
Escrow
Advances at Termination
|
Escrow
advance balance at time of liquidation.
|
|||||
|
Charge-off
amount
|
Loss
amount.
|
|||||
|
Severity
|
Severity
percentage.
|
|||||
|
Severity
Formula
|
Formula
for calculating Severity percentage.
|
|||||
|
Potential
Deficiency Judgment
Flag
|
Flag
indicating loan is referred for deficiency collections.
|
|||||
|
Potential
Deficiency Amount
|
Deficiency
balance reported to borrower/IRS.
|
|||||
|
Deficiency
Proceeds (this period)
|
Deficiency
proceeds collected in current month.
|
|||||
|
Deficiency
Proceeds Total
(to date)
|
Deficiency
proceeds collected to date.
|
|||||
|
Deficiency
Vendor Expense
|
Deficiency
vendor out of pocket expenses.
|
|||||
|
Deficiency
Servicer Expense
|
Deficiency
vendor collection fee
|
|||||
|
Servicer
Hold Back Amount
|
Amount
servicer withholds for future trailing expenses.
|
|||||
|
Days
from Acquisition to Close
|
Days
from Acquisition to Close
|
|||||
|
Days
from Possession to Close
|
Days
from Possession to Close
|
|||||
|
Property
Sale Date
|
Date
property sold.
|
|||||
|
Termination
Type
|
Type
of liquidation. See Enumerations worksheet.
|
|||||
|
Scheduled
Sale Date
|
Dates
of planned sales for properties in Foreclosure
|
|||||
|
Property
Sales Price
|
Sales
price if liquidation was short sale or REO sale.
|
|||||
|
Liquidation
Date
|
Date
property liquidated.
|
|||||
|
Hazard
Insurance Claim Date
|
Date
hazard claim filed.
|
|||||
|
Hazard
Insurance Claim Due Date
|
Date
hazard claim due.
|
|||||
|
Hazard
Insurance Claim Amount
|
Amount
of hazard claim.
|
Exh.
1-14
|
Hazard
Insurance Claim Paid
Amount
|
Amount
of hazard claim paid to investor.
|
||||
|
MI
Insurance Claim Date
|
Date
MI claim filed.
|
||||
|
MI
Insurance Claim Due Date
|
Date
MI claim is due to be paid.
|
||||
|
MI
Insurance Claim Amount
|
Expected
MI proceeds.
|
||||
|
MI
Insurance Claim Paid Amount
|
Actual
MI proceeds received.
|
||||
|
306
|
|||||
|
BN10
|
Balloon,
10 Year
|
|
BN5
|
Balloon,
5 Year
|
|
BN7
|
Balloon,
7 Year
|
|
FIX
|
Fixed
|
|
FX10
|
Fixed
- 10 Year
|
|
FX15
|
Fixed,
15 Year
|
|
FX5
|
Fixed
- 5 Year
|
|
FXST
|
Fixed
- Short Term
|
|
H101
|
Hybrid,
10/1
|
|
H106
|
Hybrid,
10/6 month
|
|
H21
|
Hybrid,
2 Year
|
|
H228
|
Hybrid
2/28
|
|
H31
|
Hybrid,
3/1
|
|
H327
|
Hybrid
3/27
|
|
H51
|
Hybrid,
5/1
|
|
H71
|
Hybrid,
7/1
|
|
OTH
|
Other
|
|
STEP
|
Step
Coupon
|
Exh.
1-15
|
10YC
|
10
Year CMT
|
|
1ML
|
1
Month Libor
|
|
1YC
|
1
Year CMT
|
|
1YL
|
1
Year Libor
|
|
2ML
|
2
Month Libor
|
|
2YC
|
2
Year CMT
|
|
3ML
|
3
Month Libor
|
|
3MT
|
3
Month TBill
|
|
3YC
|
3
Year CMT
|
|
5YC
|
5
Year CMT
|
|
6MCD
|
6
Month
CD
|
|
6ML
|
6
Month Libor
|
|
6MT
|
6
Month TBill
|
|
COFI
|
COFI
|
|
FHLM
|
FHLMC
Commitment Rate
|
|
FNMA
|
FNMA
Commitment Rate
|
|
OTH
|
Other
Rate
|
|
PRI
|
PRIME
|
|
DEC3
|
Nearest
1000th
|
|
H8
|
Higher
Xxxxxx
|
|
X0
|
Xxxxxxx
Xxxxxx
|
|
XXXX
|
Xxxx
|
Xxx.
1-16
|
3360
|
30/360
|
|
A360
|
Actual/360
|
|
A365
|
Actual/365
|
|
AA
|
Actual/Actual
|
|
COMI
|
Conventional,
with mi. Collecting a premium from the borrower for mortgage
insurance and
is FHA and is VA
|
|
CONV
|
Conventional,
no mi
|
|
FHA
|
FHA
Mortgage
|
|
HEL
|
Home
Equity Line of credit
|
|
CC
|
Credit
Card
|
|
A
|
Auto
|
|
B
|
Boats
|
|
RV
|
RV’s
|
|
MFG
|
Manufactured
Housing
|
|
ATV
|
ATV
|
|
VA
|
VA
Mortgage
|
|
OTH
|
Other
|
|
2ND
|
2nd
Home
|
|
|
NOO
|
Non
Owner Occupied
|
|
|
OO
|
Owner
Occupied
|
|
|
VA
|
Vacant
|
|
|
2F
|
2
Family
|
|
|
3F
|
3
Family
|
|
Exh.
1-17
|
4F
|
4
Family
|
|
2-4F
|
2-4
Family
|
|
AUTO
|
Automobile
|
|
BOAT
|
Boat
|
|
COND
|
Condominium
|
|
COOP
|
Cooperative
|
|
HR-CONDO
|
High
Rise Condo
|
|
HVAC
|
HVAC
|
|
MF
|
Multi
Family
|
|
MH
|
Manufactured
Housing
|
|
MX
|
Mixed
Use
|
|
OF
|
Office
|
|
OTH
|
Other
|
|
PUDA
|
PUD
- Attached
|
|
PUDD
|
PUD
- Detached
|
|
PWR
|
PowerSports
|
|
RT
|
Retail
|
|
RV
|
Recreational
Vehicle
|
|
SF
|
Single
Family
|
|
TH
|
TownHouse
|
|
PUR
|
Purchase
|
|
RELO
|
Relocation
|
|
REFI
|
Rate/Term
Refinance
|
|
CASH
|
Cash
Out Refinance
|
|
DEBT
|
Cash
Out Debt Consolidation
|
|
IMPR
|
Cash
Out Home Improvement
|
|
EDUC
|
Cash
Out Medical or Educational Expense
|
|
TIT1
|
Title
One Home Improvement
|
|
CONST
|
New
Construction
|
Exh.
1-18
|
REO
|
Facilitate
REO
|
|
BU
|
Bankrupt
- Unknown Status
|
|
C
|
Current
|
|
DISP
|
Dispute
|
|
F
|
Foreclosure
|
|
NE
|
Non
Equity (NPV of current balance <
$7,500)
|
|
FB
|
Forbearance
|
|
ID
|
In
Demand
|
|
LIT
|
Litigation
|
|
NLS
|
No
Longer Serviced
|
|
PO
|
Paid
Off- Borrower paid down entire balance
|
|
REO
|
Real
Estate Owned - MUST Include a
REO
sub status
|
|
RSLD
|
Resolved
|
|
LIQ
|
Liquidated
- MUST include a Termination
Type
|
|
U
|
Unknown |
|
CO
|
Charge
Off
|
|
COC
|
Charge
Off with cash possible
|
|
NLPO
|
Negotiated
Loan Payoff
|
|
NS
|
Negotiated
Sale
|
|
PO
|
Paid
Off
|
|
PPOC
|
PPO
with More Cash Possible
|
|
REOS
|
REO
Sale
|
|
TPPO
|
Third
Party Paid Off
|
Xxx.
0-00
|
XX
|
Xxxxx
By
|
|
WT
|
Walk
Through
|
|
OTH
|
Other
|
|
APPR
|
Appraisal
|
|
DD
|
Due
Diligence
|
|
PRFC
|
Pre
Foreclosure
|
|
SUPP
|
Supplemental
|
|
RR
|
Re-review
|
|
AC
|
Acquired
|
|
PS
|
Possession
|
|
EV
|
Eviction
|
|
LS
|
Listed
|
|
UC
|
Under
Contract
|
|
ABP
|
Abandonment
of Property
|
|
BF
|
Business
Failure
|
|
CI
|
Curtailment
Of Income
|
|
D
|
Death
|
|
EO
|
Excessive
Obligations
|
|
ILL
|
Illness
|
|
ITR
|
Inability
To Rent
|
|
MD
|
Marital
Difficulties
|
|
MS
|
Military
Service
|
|
MI
|
Mortgagor
Incarcerated
|
|
N
|
No
Reason
|
|
PD
|
Payment
Dispute
|
|
PP
|
Property
Problem
|
|
SP
|
Servicing
Problems
|
Exh.
1-20
|
TOP
|
Transfer
Of Ownership Pen
|
|
UC
|
Unable
To Contact
|
|
UEMP
|
Unemployment
|
Exh.
1-21
EXHIBIT
2
FORM
OF
CUSTODIAL ACCOUNT CERTIFICATION
_______
__,200[_]
[__________]
hereby
certifies that it has established the account described below
as
a Custodial Account pursuant to Section 2.04 of the Flow Servicing
Agreement,
dated as of January 1, 2006.
Title
of
Account: “Avelo Mortgage, L.L.C., in trust for [insert name of Owner],
Residential Fixed and Adjustable Rate Mortgage Loans, and various
Mortgagors.”
Account
Number: _________________
Address
of office or branch
of
the
Servicer at
which
Account is maintained:
|
Avelo
Mortgage, L.L.C.,
Servicer
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Exh.
2-1
EXHIBIT
3
FORM
OF
CUSTODIAL ACCOUNT LETTER AGREEMENT
__________
__, 200[_]
| To: | |
|
(the
“Depository”)
|
As
Servicer under the Flow Servicing Agreement, dated as of January 1,
2006
(the
“Agreement”),
we
hereby authorize and request you to establish an account, as a Custodial
Account
pursuant to Section 2.04 of the Agreement, to be designated as “Avelo Mortgage,
L.L.C.,
in trust for [insert name of Owner], Residential Fixed and Adjustable
Rate
Mortgage Loans, and various Mortgagors.” All deposits in the account shall be
subject to withdrawal therefrom
by order signed by the Servicer. You may refuse any deposit which would
result
in violation of the requirement that the account be fully insured as
described
below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
|
Avelo
Mortgage, L.L.C,
Servicer
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Date: | ||
Exh.
3-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number _________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
The parties hereto intend that the Custodial Account established hereby shall
be
a Special Deposit Account. This letter shall be construed in accordance with
the
laws of the State of New York.
|
Depository
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Date: | ||
Exh.
3-2
EXHIBIT
4
FORM
OF
ESCROW ACCOUNT CERTIFICATION
_______
__,200[_]
[___________]
hereby certifies that it has established the account described below as an
Escrow Account pursuant to Section 2.06 of the Flow Servicing Agreement, dated
as of January 1, 2006.
Title
of
Account: “Avelo Mortgage, L.L.C., in trust for [insert name of Owner]
Residential Fixed and Adjustable Rate Mortgage Loans, and various
Mortgagors.”
Account
Number: ______________
Address
of office or branch
of
the
Servicer at
which
Account is maintained:
|
Avelo
Mortgage, L.L.C.,
Servicer
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Date: | ||
Exh.
4-1
EXHIBIT
5
FORM
OF
ESCROW ACCOUNT LETTER AGREEMENT
_______
__,200 [_]
|
To:
|
|
|
(the
“Depository”)
|
As
Servicer under the Flow Servicing Agreement, dated as of January 1, 2006 (the
“Agreement”),
we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 2.06 of the Agreement, to be designated as “Avelo Mortgage,
L.L.C., in trust for [insert name of Owner] Residential Fixed and Adjustable
Rate Mortgage Loans, and various Mortgagors.” All deposits in the account shall
be subject to withdrawal therefrom by order signed by the Servicer, You may
refuse any deposit which would result in violation of the requirement that
the
account be fully insured as described below. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
| Avelo Mortgage, L.L.C., Servicer | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Date: | ||
Exh.
5-1
The
undersigned, as Depository, hereby certifies that the above described account
has
been
established under Account Number [_________], at the office of the Depository
indicated
above,
and agrees to honor withdrawals on such account as provided above. The full
amount deposited at any time in the account will be insured by the Federal
Deposit Insurance Corporation through the Bank Insurance Fund (“BIF”) or
the Savings Association Insurance Fund (“SAIF”). The parties hereto
intend that the Escrow Account established hereby shall be a Special Deposit
Account. This letter shall be construed in accordance with the laws of the
State
of New York.
|
Depository
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Date: | ||
Exh
5-2
EXHIBIT
6
FORM
OF
ANNUAL CERTIFICATION
Re: The
[
] agreement dated as of [ ], 200[ ] (the “Agreement”),
among
[IDENTIFY PARTIES]
I,
________________________, the _________________________________ of [NAME OF
COMPANY] (the “Company”),
certify to [the Owner], [the Depositor], and the [Master Servicer] [Securities
Administrator] [Trustee], and their officers, with the knowledge and intent
that
they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance
Statement”),
the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange
Act”)
and
Item 1122 of Regulation AB (the “Servicing
Assessment”),
the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the “Attestation
Report”),
and
all servicing reports, officer’s certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the
“Company
Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any Subservicer
or Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance described
in such reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
|
Date:
|
||
|
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Xxx.
0-0
XXXXXXX
0
XXXXXXXXX
XXXXXXXX TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [Subservicer]
shall
address, at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
General
Servicing Considerations
|
||||
|
1122(d)(l)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance
with the transaction agreements.
|
ü
|
||
|
1122(d)(l)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party's performance and compliance with such servicing
activities.
|
ü
|
||
|
1122(d)(l)(iii)
|
Any
requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
|
|||
|
1122(d)(l)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party participating in the servicing function throughout
the reporting period in the amount of coverage required by and otherwise
in accordance with the terms of the transaction
agreements.
|
ü
|
||
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business days following receipt,
or such other number of days specified in the transaction
agreements.
|
ü
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
ü
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for
such advances, are made, reviewed and approved as specified
in the transaction agreements.
|
ü
|
Exh.
7-1
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
ü
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution
means a foreign financial institution that meets the requirements
of Rule 13k-l(b)(l) of the Securities Exchange Act.
|
ü
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
ü
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and
related
bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within 30 calendar
days
after the bank statement cutoff date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original identification,
or
such other number of days specified in the transaction
agreements.
|
ü
|
||
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes
and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by
its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number
of
mortgage loans serviced by the Servicer.
|
ü
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms
set forth in the transaction agreements.
|
ü
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer's
investor records, or such other
number of days specified in the transaction agreements.
|
ü
|
Exh.
7-2
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
statements.
|
ü
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required
by the transaction agreements or related mortgage loan
documents.
|
ü
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required
by the transaction agreements
|
ü
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed and approved in accordance with any conditions or requirements
in
the transaction agreements.
|
ü
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than
two business days after receipt, or such other number of days specified
in
the transaction agreements, and allocated to principal, interest
or other
items (e.g., escrow) in accordance with the related mortgage loan
documents.
|
ü
|
||
|
1122(d)(4)(v)
|
The
Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
principal balance.
|
ü
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance
with the transaction agreements and related pool asset
documents.
|
ü
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded
in accordance with the timeframes or other requirements established
by the
transaction agreements.
|
ü
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance
with the transaction agreements. Such records are maintained
on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls, letters
and
payment rescheduling plans in cases where delinquency is deemed
temporary
(e.g., illness or unemployment).
|
ü
|
Exh.
7-3
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
ü
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at
least an annual basis, or such other period specified in the transaction
agreements; (B) interest on
such
funds is paid, or credited,
to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
ü
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills
or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to
these
dates, or such other number of days specified in
the transaction agreements.
|
ü
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the servicer's funds
and not
charged to the obligor, unless the late payment was due to the obligor's
error or omission.
|
ü
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the servicer,
or
such other number of days specified in the transaction
agreements.
|
ü
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized
and recorded in accordance with the transaction agreements.
|
ü
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item
1114(a)(l) through (3) or Item 1115 of Regulation AB, is maintained
as set
forth in the transaction agreements.
|
| [NAME OF SERVICER] [SUBSERVICER] | ||
| Date: | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Exh.
7-4
EXHIBIT
8
Subprime
Default and REO Servicing Standards
| · |
Right
Party Contact Rate of twenty-seven and a half percent (27.50%) per
month.
Termination standard is twenty-two and a half percent (22.50%), after
Servicer has failed to respond to the notice provisions contained
in the
Flow Servicing Agreement
|
| · |
Servicer
shall meet the foreclosure timeline requirements as set forth in
the FNMA
guidelines
|
Time
Zones
All
accounts should be called until 9:00 p.m. in each time zone Monday through
Thursday.
Collection
Call Statistics
With
respect to only loans owned by Owner ("Owner
Loans"),
Servicer shall report monthly to Owner
to
the extent permitted by applicable law the following dialer statistical
information broken
out by delinquency bucket and on a
loan
level basis:
· Number
of
attempts made; ACD, predictive and non-predictive ;
· Number
of
right party contacts ;
· Number
of
commitments obtained; and
· Number
of
performing commitments.
The
reports provided by Servicer to Owner will stratify the collection work efforts
and/or results in such a manner as to reasonably assure Owner that Servicer
is
in material compliance with the agreed
upon service levels.
Skip
Tracing Statistics
A
minimum
of 50% of the accounts referred to skip tracing should result in a good phone
number
for the borrower.
Broken
Repayment Plans or Broken Promise to Pay
Follow-up
with the Mortgagor within seventy-two (72) hours of the repayment plan being
broken.
FICO's
Updated
FICO scores must be ordered, at Owner's sole cost and expense, on all Owner
Loans on a quarterly basis and reported to Owner on the following month end
tape.
VALUATIONS
BPO
should be ordered on the day in which a loan becomes sixty-five (65) days
delinquent if such
loan
is not cash flowing through a forbearance plan or bankruptcy plan. Servicer
should receive
the requested BPO within twenty-one (21) days of such BPO order with the
understanding
that such BPOs may be received at any time depending on the totality of the
circumstances; provided,
however, the
Servicer shall provide Owner with notice and weekly updates
of any developments with respect to any BPO which is not received by the
Servicer within
twenty-one (21) days of such BPO order. Reconciliation should be performed
on a
BPO within five (5) business days of receipt thereof. Servicer system should
reflect reconciled value upon receipt of the BPO. The reconciled value should
then be reported to Owner with the next month
end
data tape.
Exh.
8-1
BANKRUPTCY
All
bankruptcy actions will be managed according to FNMA guidelines including,
without limitation,
bankruptcy set-up, filing proofs of claims, monitoring plans, referring loans
to
an attorney, filing motions for relief, and/or releasing bankruptcies back
to
foreclosure/normal servicing.
All
loans
owned by Owner should be run though XXXXX or a similar system once every thirty
(30)
days.
FORECLOSURE
Servicer
shall follow FNMA timelines for all Owner Loans in foreclosure. Allowable delays
shall
include bankruptcy filings, litigation, loss mitigation which results in cash
being applied to the loan. Assignment delays should be no longer than thirty
(30) days. Title issues should be no longer
than sixty (60) days. Any delays that shall exceed these estimated timelines
should be reported
to Owner on a monthly basis. Owner Loans will not be referred to foreclosure
until the reconciled
value has been received and evaluated.
Servicer
shall maintain a foreclosure resolution rate of fifty percent
(50%).
Exh.
8-2
EXHIBIT
9
REO
Servicing Standards
Purpose:
The
purpose of these standards is to serve as a guideline for valuations, reporting
and overall management of Owner REO Assets.
Property
Valuations:
|
·
|
BPO –
As
soon as the REO property in possession, by our attached definition
an
interior BPO should be ordered by the servicer. The BPO should state
a
Value as-is and a Repaired Value. It should include interior photos,
photos of outbuildings, and deferred maintenance. Upon completion
an
original copy of the BPO is to be forwarded to the REO Department
of Owner
either in PDF format or overnight hard copy. Sale and listing information
on the BPO should be in a grid format acceptable to
Owner.
|
|
·
|
APPRAISAL –
(Only on new REO acquisitions) As soon as the property is re-keyed
and
trashed out the servicer will at Owner request, order a full interior
appraisal on form 1004 from an Appraiser acceptable to Owner. The
appraiser should be given the access instructions by the servicer.
The
full appraisal will include interior photos, photos of all outbuildings
and deferred maintenance. Required is “The Supplemental REO Addendum Form”
giving 3 listing comps, itemization of needed repairs, and as-is
and
as-repaired value. Upon completion an original copy of the Appraisal
is to
be forwarded or made available to the REO Department of Owner either
in
PDF format or overnight hard copy.
|
|
·
|
OTHER
–
Any and all subsequent BPO’s, CMA’s Appraisals, AVM’s or other evaluations
ordered during the course of the REO term are to be made available
in the
same manner.
|
Vendors:
|
·
|
From
time to time, Owner will provide the Servicer with a published list
of
Appraisers, Appraisal Vendors, Realtors, Brokers and other service
providers with whom they prefer not to do business. The Servicer
will make
commercially reasonable efforts to refrain from using anyone named
on such
a list and Owner reserves the right to refuse any product or service
and
payment for that product or service provided by such listed Appraisers,
Appraisal Vendors, Realtors, Brokers and other service
providers – if, and only if, such product or service
does not comply with reasonable standards as determined by generally
accepted mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such
mortgage loan in the jurisdiction where the related mortgaged property
is
located.
|
Possession:
|
·
|
RE-KEYING
–
The property should be Re-keyed as soon as it is in our possession
both to
keep prior occupants out and allow access to new service providers
and
Owner personnel. Owner suggests that the door be re-keyed to a master
key
code (key code to be furnished to REO personnel at Owner) and the
new keys
be placed in a combo lock box. The servicer will keep REO personnel
at
Owner informed with proper access
information.
|
Exh.
9-1
| · |
TRASH
OUT –
Defined as but not limited to; grass cut, shrubs and trees trimmed,
all
debris cleared from interior and exterior, appliances emptied, cleaned
and
secured, all trash removed from premises, windows and doors secured,
any
fire or safety hazard removed. The property should be trashed out
before
the full appraisal is ordered and the "For Sale" sign is placed on
the
property.
|
|
·
|
CASH
FOR KEYS –
The maximum allowable payment to either an owner or tenant to vacate
the
property without Owners’ prior consent should be one thousand five hundred
dollars ($1,500). If the servicer intends to pay either an owner
or tenant
to vacate the property an amount in excess of one thousand five hundred
dollars ($1,500), the servicer should make commercially reasonable
efforts
to obtain Owners’ prior consent. Every advance should be cost justified
and that data available to Owner upon request. The exact amount of
the
advance should be proportional to the benefit and made to avoid a
lengthily eviction process. Payments should be made only after the
property is actually vacated and inspected by designated agents of
the
servicer. The servicer will report each month on all cash for keys
transactions.
|
|
·
|
INSURANCE
CLAIMS –The
servicer will report on a monthly basis all Insurance claims filed,
claims
denied and claims aged over ninety (90) days during the reporting
period.
|
On
the Market:
| · |
LISTING
–
|
All
properties are expected to be listed within thirty (30) days of
possession.
Properties
not listed within thirty (30) days will require an exceptions report at month
end.
All
listings should be in the local MLS.
Listing
Agreements should not be for more than six (6) months.
All
listing agreements are subject to cancellation at any time without penalty
of
liability to Owner
| · |
SIGNAGE
–
|
All
listed properties are to have a sign that is conspicuous and readable from
the
street which clearly indicates the property is available for sale and contact
information for prospective buyers.
From
the
date of acquisition through the date of listing , the broker/agent/servicer
is
to reasonably inspect the property until a sale sign is posted.
Exh.
9-2
EXHIBIT
10
FORM
OF NOTICE LETTER
[LETTERHEAD
OF OWNER]
[DATE]
Avelo
Mortgage, L.L.C.
000
X.
Xxx Xxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention:
President
Re:
Flow
Servicing Agreement dated January 1, 2006 (the “Servicing
Agreement”),
between Xxxxxxx Sachs Mortgage Company (“Owner”)
and
Avelo Mortgage. L.L.C., as servicer (“Servicer”).
Gentlemen
and Ladies:
This
letter (this “Notice
Letter”)
and
the Mortgage Loan Schedule attached hereto as Exhibit
A,
identifies certain mortgage loans (the “Added
Mortgage Loans”)
which
Owner requests
to make subject to the Servicing Agreement effective as of [_________] (the
“Transfer
Date”).
As
of the
Transfer Date, the Added Mortgage Loans shall be deemed to have been made
subject to the terms and conditions of the Servicing Agreement. The Mortgage
Loans are [prime] [subprime] [Alt-A] Mortgage Loans and all delinquency
calculation with respect to the Added Mortgage Loans shall be determined in
accordance with [ABS] [RMBS] methodology. The
Servicing Fee Rate with respect to the Added Mortgage Loans shall be [_____].
The REO Management Fee with respect to the Added Mortgage Loans shall be
[___________].
All
exhibits hereto are incorporated herein in their entirety. All capitalized
terms
used herein and not otherwise defined herein shall have the meanings assigned
to
such terms in the Servicing Agreement.
[SIGNATURE
PAGE FOLLOWS]
Xxx.
00-0
IN
WITNESS WHEREOF, this Notice Letter has been executed as of the _____ day of
_________________.
| XXXXXXX XXXXX MORTGAGE COMPANY, as Owner | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| AVELO MORTGAGE, L.L.C., as Servicer | ||
| |
|
|
| By: | ||
|
Name: J. Xxxxxx Xxxxxxx |
||
| Title: President | ||
Xxx.
00-0
